Freedom
of Information Commission
of
the State of Connecticut
In the Matter of a Complaint by Final
Decision
Phylis B. Bernard,
Complainant
against Docket
#FIC 1995-392
Norfolk Town Center Consultant
Selection Committee,
Respondent September
11, 1996
The
above-captioned matter was heard as a contested case on March 29, 1996, 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. It is found that the respondent is a
committee comprised of five members, appointed by the Town of Norfolk
(hereinafter “the town”) Board of Selectmen for the purpose of selecting an
engineering consultant to design blueprints for a town center enhancement
project funded by the Federal Highway Administration pursuant to the federal
Intermogul Surface Transportation Efficiency Act (hereinafter “ISTEA”).
2. The respondent is a public agency within the
meaning of §1-18a(a), G.S.
3. By letter dated November 15 and filed November 16, 1995, the
complainant appealed to the Commission alleging that the respondent violated
the Freedom of Information (hereinafter “FOI”) Act by denying her access to
attend its November 15, 1995 meeting, and by failing to post notice of such
meeting.
4.
It is found that in the fall of 1995, the town issued a request for
proposals for a consulting engineering firm to prepare plans for a new town
center.
5. It is
found that the respondent held a meeting at town hall on November 15, 1995, to
interview three of six consultants selected for interviews from the eighteen
consultants who had submitted proposals, and that three more consultants were
scheduled to be interviewed the following day.
6.
It is found that the complainant was at town hall on November 15, 1995,
and requested permission to attend the meeting from the town’s first selectman,
who is also a member of the respondent, but he told her that she could not
attend the meeting.
7. The
respondent claims that the gathering was not a meeting for purposes of the FOI
Act pursuant to 23 Code of Federal Regulations, Chapter 1, §172, and because it was a
meeting of a personnel search committee.
8. Section
1-18a(b), G.S., provides, in relevant part:
“Meeting” shall not include: Any meeting of a personnel search committee
for executive level employment candidates…
9. It is
found that the respondent is not a personnel search committee, and the
consultants interviewed by the respondent were not executive level employment
candidates within the meaning of §1-18a(b), G.S.
10. Section
172 of 23 C.F.R. Ch. 1 (4-1-95 Edition) provides for the general guidelines to
be utilized in selecting a consultant in a Federal Highway Administration ISTEA
project.
11. It is
found that §172 of 23 C.F.R. Ch. 1
(4-1-95 Edition) neither supports the respondent’s claim that the November 15,
1995 gathering was not a meeting for purposes of the FOI Act, nor states an
exemption to the open meeting requirements of the FOI Act.
12. It is
concluded that the respondent’s November 15, 1995 gathering described in
paragraph 4, above, was a meeting within the meaning of §1-18a(b), G.S.
13. The
respondent next claims that it was permitted to close its November 15, 1995
meeting to the public pursuant to §1-19(b)(7), G.S.
14. Section
1-18a(e)(5), G.S., permits an agency to convene in 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.”
15. Section
1-19(b)(7), G.S., provides, in pertinent part:
Nothing in [the FOI Act] shall be construed to
require disclosure of the contents of real estate appraisals, engineering or
feasibility estimates and evaluations 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…
16.
It is found that the respondent discussed engineering and feasibility
estimates and evaluations made for the respondent relative to a prospective
public construction contract with the consultants being interviewed at its
November 15, 1995 meeting; and it is concluded that such documents are exempt
from disclosure pursuant to §1-19(b)(7), G.S.
17.
It is therefore concluded that the respondent could have permissibly
convened in executive session to discuss the engineering and feasibility
estimates and evaluations, pursuant to §§1-18a(e)(5) and 1-19(b)(7),
G.S.
18.
It is also found, however, that the respondent did not file a notice of
the November 15, 1995 meeting, and did not vote to convene in executive
session, as required by the provisions of §1-21(a), G.S.
19.
It is therefore concluded that the respondent violated §1-21(a), G.S., by failing to
file a notice of the November 15, 1995 meeting, and by failing to vote to
convene in executive session.
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.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
September 11, 1996.
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission
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:
Phylis
B. Bernard
15
Aetna Lane
P.O.
Box 233
Norfolk,
CT 06058
Norfolk Town Center Consultant Selection Committee
c/o Joseph Vitale, Esq.
Levy & Droney, P.C.
Pond View Center
74 Batterson Road
Farmington, CT 06034-0887
__________________________
Elizabeth
A. Leifert
Acting
Clerk of the Commission