FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Joseph J. Mingo,
Complainant
against Docket
#FIC 95-267
David L. Cini, Chairman;
Bruce R. Bailey; Mary N. Cahill; Joseph
C. Care; Fred Kral; Edward
McCloy; Edward T. Ramotowski; Michael S.
Tinkle and East Lyme Water
and Sewer Commission,
Respondents May 8, 1996
The above-captioned matter was heard as a contested
case on March 18, 1996, 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 with this Commission on August 10, 1995, the complainant
alleged that the respondents violated the provisions of the Freedom of
Information ("FOI") Act by permitting non-members of the respondent
to enter executive session on July 25, 1995 and by failing to specify in its
minutes of that meeting the names of all persons in attendance at that
executive session.
3. At the
hearing into this matter, the parties agreed that as of the date of the alleged
violation in this matter, Edward McCloy was not a member of the respondent
commission, and therefore he is not properly a party for purposes of the
instant controversy.
4. It is
found that at the respondents' regular meeting of July 25, 1995, the
respondents convened in executive session for a discussion of the outcome of a
civil suit concerning the construction of a portion of the town's sewer system.
5. It is also
found that the executive session included not only members of the respondent,
but also several other local officials.
Docket #FIC 95-267 Page
2
6. It is
further found that the attendance of the attorney who conducted the discussion
in executive session is permitted under
1-21g(a), G.S.
7. It
is also found, however, that the attendance of the other non agency members
throughout the entire executive session was unnecessary under the circumstances
of this case.
8. It is
therefore concluded that the respondents violated the provisions of
1-21g(a), G.S., by not limiting attendance in accordance therewith.
9. It is
found that the minutes of the respondents' July 25, 1995 regular meeting do set
forth the names of those present in the executive session.
10.
Accordingly, there is no violation found herein with regard to the
allegations that the respondents' minutes omitted executive session attendee
names.
11. At the
hearing into this matter the complainant raised for the first time the issue of
whether the respondents conducted the executive session for a proper topic
pursuant to 1-18a(e)(2), G.S. As a
matter of due process, however, the Commission declines to examine that issue
raised for the first time at hearing.
12. Also at
the hearing into this matter the respondents made a motion to dismiss on the
ground that the complainant had no standing to bring his appeal based on his
status as a member of the respondent commission and consequent full attendance
at the executive session at issue.
13. It is
found that despite the complainant's attendance at the executive session in
question, he was nonetheless denied the right to require the conduct of the
session in public due to the attendance of nonmembers of the respondent
commission.
14. The
respondents' motion to dismiss is hereby denied.
Docket #FIC 95-267 Page
3
The following order by the Commission is hereby
recommended on the basis of of the record concerning the above-captioned
complaint.
1. Henceforth
the respondents shall strictly comply with the provisions of 1-21g(a),
G.S.
2. That portion
of the complaint concerning the minutes of the July 25, 1995 meeting of the
respondents is hereby dismissed.
3. In its
discretion the Commission declines to issue civil penalties under the facts of
this case but notes that any further violation of 1-21g(a), G.S. puts the
respondents at risk of civil penalties in amounts of up to $1,000.00.
Approved by Order of the
Freedom of Information Commission at its regular meeting of May 8, 1996.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 95-267 Page
4
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:
Joseph J. Mingo
397 Boston Post Road
East Lyme, CT 06333
David L. Cini, Chairman;
Bruce R. Bailey; Mary N. Cahill; Joseph C. Care; Fred Kral; Edward McCloy;
Edward T. Ramotowski; Michael S. Tinkle and East Lyme Water and Sewer
Commission
c/o Edward B. O'Connell, Esq.
Waller, Smith & Palmer,
P.C.
52 Eugene O'Neill Drive
New London, CT 06320
Elizabeth A. Leifert
Acting Clerk of the Commission