FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Debra C. Smith,
Complainant
against Docket #FIC 94-191
Glastonbury Town Planning and Zoning Commission Leadership
Subcommittee, and Glastonbury Town Planning and Zoning Commission,
Respondents April 26, 1995
The above-captioned matter was heard as a contested case on January 3, 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 filed June 9, 1994, the complainant appealed to the Commission, alleging that she had been denied access to certain records, and that a "leadership" subcommittee of the respondents had met secretly and without notice during the week of May 23, 1994.
3. It is found that at all times relevant to this complaint the respondent planning and zoning commission ("P&ZC"), as the town planning authority, was considering whether to recommend a zone change permitting affordable housing to the town council, as the town zoning authority.
4. It is found that the P&ZC concluded extended hours of public hearings on May 16, 1994 on the proposed zone change.
5. It is found that the P&ZC did not ajourn after the close of the public hearing portion of the meeting, but continued with their meeting to discuss their individual opinions about the proposed zone change, and whether any motions should be put on the floor that evening.
6. It is found that one member of the P&ZC indicated that he had already drafted findings and motions both in support of and in opposition to the proposed zone change (the "commissioner's draft motion and findings").
Docket #94-191 Page 2
7. It is found that the complainant made an oral request for those draft findings and motions at the Glastonbury community development office on May 26, 1994.
8. It is found that the community development office provides staff support for the P&ZC.
9. It is also found that the request was understood by the development office staff to be for a different motion and draft findings that were then in the process of being written by the community development director.
10. It is further found that the community development office staff refused to provide a copy of the findings that were being drafted by the community development director, believing that draft to be exempt from disclosure until it was provided to the P&ZC.
11. It is found that the community development director became aware of his staff's misunderstanding of the complainant's request on or about June 7, 1994, and shortly thereafter provided a copy of the commissioner's draft motion and findings.
12. It is also found that the community development director provided a copy of his own draft motion and findings to the complainant on or about June 14, 1994.
13. It is found that the P&ZC, because its staff misunderstood the complainant's request, never actually denied her a copy of the commissioner's draft findings and motion.
14. It is also found that the P&ZC's staff misunderstanding was reasonable at the time.
15. It is also found that there was no evidence presented to suggest that the P&ZC's staff would have denied the complainant's actual request had they understood it.
16. It is therefore concluded that the P&ZC did not violate 1-19(a), G.S., by failing to provide a copy of the commissioner's draft findings and motions at the time they were requested.
17. With respect to the complainant's allegation concerning a secret or unnoticed meeting, it is found that the chairman, vice-chairman and secretary of the P&ZC assembled with the community development director during the week of May 23, 1994--after the close of public hearings concerning the proposed zone change, but before the P&ZC's final meeting to vote whether or not to recommend the zone change.
Docket #94-191 Page 3
18. The respondents maintain that the assembly on May 23, 1994 was not a meeting within the meaning of 1-18a(b), G.S., because it was an "agenda meeting" at which there was no discussion of the substance of the zone change application and no decisions made.
19. The complainant in turn maintains that the assembly on May 23, 1994 was a meeting within the meaning of 1-18a(b), G.S., because it was a "leadership meeting" at which significant discussion took place beyond setting the agenda for the next meeting.
20. Section 1-18a(b), G.S., provides in relevant part:
"Meeting" means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. "Meeting" shall not include ... communication limited to notice of meetings of any public agency or the agendas thereof. [Emphasis added].
21. It is found that "agenda" or "leadership" meetings of the respondents are held at least weekly, before every regular and special meeting.
22. It is found that the meetings typically last for approximately one hour.
23. It is found that those present at the May 23, 1994 "agenda meeting" did not discuss the merits of the proposed zone change, or make any decisions as to whether the zone change should be recommended or not.
24. It is also found that those present at the May 23, 1994 "agenda meeting" discussed whether the P&ZC was prepared to act on a motion concerning the zone change, including discussing whether the application was complete, whether all reports connected to the application were available, and generally whether the P&ZC had "dotted all its i's and crossed all its t's" in its procedures for considering the application for zone change.
25. It is concluded that the matters discussed at the May 23, 1994 "agenda meeting" were within the control, supervision, jurisdiction or advisory power of the P&ZC as a whole.
26. The respondents maintain that since no substantive issues were discussed or decided, the gathering was not a meeting within the meaning of 1-18a(b).
Docket #94-191 Page 4
27. The respondents also maintain that the complaint should be dismissed because the complainant has failed to prove that the matters discussed at the May 23, 1994 "agenda meeting" went beyond the agenda for the following meeting.
28. It is concluded, however, that it is the respondents' burden to prove that the subject "agenda meeting" was within the exclusion set forth in 1-18a(b), not the complainant's burden to prove what happened at a meeting from which she was excluded.
29. It is further concluded that the exclusion from the definition of "meeting" upon which the respondents rely requires them to prove not merely that there was no discussion of the merits of the application and no decision the merits, but specifically to prove that discussion was limited to "communications limited to notice of meetings of any public agencies or the agendas thereof" within the meaning of 1-18a(b), G.S.
30. It is found that the entire agenda discussed at the May 23, 1994 "agenda meeting" was only about a dozen lines long.
31. It is also found that there was only one item of business on the agenda, even though that item may have involved complicated procedural and substantive issues.
32. It is also found that respondents through the leadership subcommittee meet weekly for "agenda" meetings, and that weekly hour-long meetings are not necessary to either establish or simply communicate the agenda for the next meeting.
33. It is further found that the participants at the "agenda meetings" meet under the implied authority of the P&ZC to discuss a matter over which the P&ZC has supervision, control, jurisdiction and advisory power, within the meaning of docket #FIC 94-39, Sydney Libby against Ad Hoc Committee of the Middletown Town Council and Middletown Town Council.
34. It is further found that the May 23, 1994 "agenda meeting" was a pre-meeting proceeding designed to make the regular meeting run more smoothly, in the same manner as the proceeding in Libby.
35. At the request of the respondents, the Commission takes administrative notice of its records and final decisions in docket numbers FIC 82-6, Jane Echelson and Julie A. Raymond against East Hartford Board of Education, FIC 91-144, Robert Isner against Southingtown Town Council, and Advisory Opinion #56, In the Matter of a Request for Advisory Opinion from Selectman, Stafford, Applicant.
36. It is found that the communication in the Echelson case was limited to a telephone notice that a certain motion would be made.
Docket #94-191 Page 5
37. It is found that the communication in the Isner case was limited to an advance notice to the town manager that certain action would be considered at that evening's meeting.
38. Advisory Opinion #56 provides that the FOI Act does not prevent a selectman from communicating with another selectman "specifically about what items have been placed on the board of selectmen's agenda for a particular meeting or about the [selectman's] recommendations for future agenda items.
39. It is found that the communications at the May 23, 1994 "agenda meeting" were significantly more extensive than the simple communications of the actual content of agendas at issue in the three above-described cases.
40. It is concluded that although the issues discussed at the May 23, 1994 "agenda meeting" were procedural rather than substantive, 1-18a(b), G.S., requires not that the communications be limited to procedural issues, but more strictly that the communications be limited to setting or communicating the items on the agenda.
41. It is further concluded that the May 23, 1994 "agenda meeting" was in fact a proceeding within the meaning of 1-18a(b), conducted by the leadership of the P&ZC, and intended to prepare for the following regular meeting.
42. It is therefore concluded that the May 23, 1994 "agenda meeting" was a meeting within the meaning of 1-18a(b), G.S.
43. It is found that the respondents filed no notice of the May 23, 1994 meeting, made no minutes of the meeting, and did not make the meeting open to the public.
44. It is therefore concluded that the respondents violated 1-21(a), G.S.
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. The respondents shall forthwith create and file minutes of the May 23, 1994 meeting.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 26, 1995.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-191 Page 6
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:
DEBRA C. SMITH
292 Woodfield Crossing
Glastonbury, CT 06033
GLASTONBURY TOWN PLANNING AND ZONING COMMISSION LEADERSHIP SUBCOMMITTEE AND GLASTONBURY TOWN PLANNING AND ZONING COMMISSION
c/o William S. Rogers, Esq.
Tyler, Cooper & Alcorn
CityPlace - 35th Floor
Hartford, CT 06103-3488
Debra L. Rembowski
Clerk of the Commission