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