FREEDOM
OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In
the Matter of a Complaint by FINAL
DECISION
John
Carlo,
Complainant
against Docket #FIC 94-184
Clement
Diana, Vincent Giannotti, Richard Massaro,
Victor
Sampietro and Allingtown Board of Fire Commissioners,
Respondents March 8, 1995
The above-captioned matter was heard
as a contested case on January 10, 1995, 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 dated May 31, 1994, the complainant appealed to
the Commission alleging that the respondents violated the Freedom of
Information ("FOI") Act by:
a. convening in executive session on May 3,
1994 without first stating the purpose;
b. convening in executive session on May 3,
1994 for reasons other than those allowed for executive sessions;
c. including on their May 3, 1994 agenda an
item not proper for discussion in executive session;
d. failing to comply with a prior FOI
Commission order in Docket #FIC 93-79 to strictly comply with the requirements
of 1-21, G.S.
3.
At the hearing in this matter, the respondents contended that the
complaint was not timely because the complainant failed to file his appeal
within the required thirty day period.
Docket
#FIC 94-184 Page 2
4.
Section 1-21i(b)(1), G.S., states in pertinent part:
Any person denied ...
any ... right conferred by [the FOI Act] may appeal therefrom to the freedom of
information commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within
thirty days after such denial .... For
purposes of this subsection, such notice of appeal shall be deemed to be filed
on the date it is received by said commission or on the date it is postmarked,
if received more than thirty days after the date of the denial from which such
appeal is taken.
5.
It is found that the complaint, described in paragraph 2, above, was
received by the FOI Commission on June 6, 1994 with a postmark of May 31, 1994.
6.
It is concluded that the complaint, having a postmark of May 31, 1994,
was timely filed and therefore, this Commission has jurisdiction to address the
allegations described in paragraphs 2a. through 2d., inclusive.
7.
With respect to the allegations described in paragraphs 2a., 2b. and
2c., above, it is found that the respondent Board held a regular meeting on May
3, 1994 during which it convened in executive session between 7:40 p.m. and
7:56 p.m.
8.
It is found that the respondent Board's May 3, 1994 minutes state that
the respondents discussed the following in executive session, "letter from
Lt. Massaro on injury", "letter from accountant Paolini" and
"letter from Frank Cusano to D/C."
9.
It is found that of the topics discussed in executive session, described
in paragraph 8, above, only the Paolini matter was noticed on the respondent
Board's May 3, 1994 agenda for discussion in executive session.
10.
With respect to the Massaro matter which was discussed in executive
session, and described in paragraph 8, above, it is found that the respondents
failed to notice this on their May 3, 1994 agenda as an item to be discussed in
executive session.
11.
Further, it is found that the May 3, 1994 agenda item which reads,
"6A. Personnel matters if
any", does not give notice to the public of the Massaro matter which the
respondents discussed in executive session.
Docket
# FIC 94-184 Page 3
12.
With respect to the Cusano matter which was discussed in executive session,
and described in paragraph 8, above, it is found that the respondents failed to
notice this on their May 3, 1994 agenda as an item to be discussed in executive
session, and failed to identify the allowed executive session purpose.
13.
With respect to the Paolini matter which was discussed in executive
session and described in paragraph 8, above, it is found that although the
respondents' May 3, 1994 agenda states "6C. Executive session letter proposal M. J. Paolini", the
respondents failed to state on the agenda the executive session purpose.
14.
With respect to the allegation described in paragraph 2a., above, it is
concluded that the respondents violated the complainant's rights when they
discussed the Massaro, Paolini and Cusano matters in executive session without
prior notice to the public that these discussions would take place in an
executive session, and without apprising the public of the allowed executive
session puposes for such discussions.
15.
With respect to the allegations described in paragraphs 2b. and 2c., it
is found that the complainant failed to prove that the respondents convened in
executive session for reasons other than those allowed, or that they included
in their May 3, 1994 agenda an item not properly discussed in executive
session.
16.
With respect to the allegation
described in paragraph 2d., above, the Commission takes administrative notice
of its final decision in Docket #FIC 93-79, John Carlo v. Allingtown Fire
District, (FIC 93-79).
17.
In FIC 93-79, based upon the stipulation of the parties, the FOI
Commission found:
6. The violations of the Freedom of Information
Act ... were not intentional, and no civil penalty should be assessed against
the respondent.
The parties having
consented thereto, the folowing 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, G.S.
Docket
#FIC 94-184 Page
4
18.
It is found that the respondents are the governing body of the named
respondent in Docket #FIC 93-79, the Allingtown Fire District.
19.
It is found that the respondents have failed to comply with the
Commission's order in Docket #FIC 93-79 to "strictly comply with the
requirements of 1-21, G.S."
20.
It is therefore concluded that the respondents have violated the
Commission's order in Docket #FIC 93-79.
The following order by the
Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1.
With respect to the allegations described in paragraphs 2a. and 2d., of
the findings above, the respondents shall forthwith attend an FOI Act workshop
to be held at the offices of the FOI Commission located at 18-20 Trinity
Street, Hartford, CT 06106.
2.
Within one week of the mailing of the notice of final decision in this
matter, the respondents shall contact the clerk of the FOI Commission to
arrange the date and time of the FOI workshop, referred to in paragraph 1 of
the order.
3.
With respect to the allegations described in paragraphs 2b. and 2c., of
the findings above, the complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
March 8, 1995.
Debra L.
Rembowski
Clerk of the
Commission
Docket
#FIC 94-184 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:
JOHN
CARLO
81
Richmond Avenue
West
Haven, CT 06516
CLEMENT
DIANA, VINCENT GIANNOTTI, RICHARD MASSARO, VICTOR SAMPIETRO AND ALLINGTOWN
BOARD OF FIRE COMMISSIONERS
c/o
Louis Smith Votto, Esq.
Donahue,
Votto & Delia, P.C.
P.O.
Box 411
415
Main Street
West
Haven, CT 06516-0411
Debra L.
Rembowski
Clerk of the Commission