FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

William J. Raymond, Jr. and Angela

D. Raymond,

Complainants

against Docket #FIC 1996-104

Zoning Commission, Town of Brookfield,

Respondent September 25, 1996

The above-captioned matter was heard as a contested case on July 19, 1996, at which time the complainants 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. The respondent is a public agency within the meaning of §1-18a(a), G.S.

2. By letter of complaint dated and filed with the Commission on March 21, 1996, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

a. failing to identify the pending litigation to be discussed in executive session at the February 22, 1996 meeting;

b. (i) failing to indicate in the February 22, 1996 agenda that the respondent would act on pending litigation; and

(ii) failing to take a two-thirds vote of its members present and voting to add the pending litigation item to the agenda prior to voting to settle such litigation;

c. failing to post an agenda for February 23, 1996 at which time a motion was made and a vote taken to authorize settlement of the pending litigation;

d. failing to post an agenda for February 23, 1996 at which time the respondent considered item #7 on the February 22, 1996 agenda; and

e. failing to accurately and adequately state the business to be transacted regarding agenda item #7, insofar as the respondent voted on February 23, 1996 to approve such application.

The complainants requested in their complaint that the Commission declare null and void the business transacted at the February 22 and February 23, 1996 meetings.

3. Section 1-21i(b)(i), G. S., provides in relevant part that:

Said [FOI] Commission shall, after due notice to the parties, hear and decide the appeal within one year after the filing of the notice of appeal. The [FOI] Commission shall adopt regulations in accordance with chapter 54, establishing criteria for those appeals which shall be privileged in their assignment for hearing. Any such appeal shall be heard within thirty days after receipt of a notice of appeal and decided within sixty days after the hearing. [Emphases added.]

4. It is found that this appeal was filed on March 21, 1996 and was not privileged in its assignment for hearing.

5. It is therefore concluded that the Commission has jurisdiction to hear and decide this appeal within one year of March 21, 1996. Accordingly, the respondent’s motion to dismiss is denied.

6. It is found that the respondent did not hold a meeting on February 23, 1996 but rather held a regular meeting on February 22, 1996, which February 22, 1996 meeting ran past midnight into the morning of February 23, 1996 (hereinafter “the meeting”). It is also found that during the meeting the respondent convened in executive session.

7. With respect to the allegations, as described in paragraph 2c. and 2d., above, it is concluded that the respondent did not violate §1-21(a), G.S., when it did not file a separate agenda for the portion of the February 22, 1996 meeting which ran past midnight into the morning of February 23, 1996, and as described in paragraph 6, above.

8. With respect to the allegation, as described in paragraph 2a., above, it is found that the meeting agenda indicates at item #3, “Executive session re: Pending Litigation - 7:30 p.m.”

9. Section 1-21(a), G.S., provides in relevant part:

A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section. [Emphases added.]

10. Section 1-18a(e), G.S., defines “executive session” as discussion of:

(2) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof…is a party until such litigation or claim has been finally adjudicated or otherwise settled. [Emphasis added.]

11. It is found that agenda item #3, as described in paragraph 8, above, does not state the reason for the executive session as defined in §1-18a(e)(2), G.S., as it does not state the pending litigation to which the public agency or a member thereof…is a party.

12. In addition, it is found that the minutes of the meeting do not reflect that the respondent, prior to convening in executive session, stated the reason for the executive session as defined in §1-18a(e)(2), G.S.

13. It is concluded that the respondent violated §1-21(a), G.S., when it convened in executive session without stating the reason for such executive session as defined in §1-18a(e)(2), G.S.

14. With respect to the allegation, as described in paragraph 2b. i, 2b. ii and 2e., above, it is found that during the executive session, (described in paragraph 6, above), the respondent discussed settlement of the pending litigation with respect to Rock Acquisition Limited Partnership/ Fairfield Resources (hereinafter “Fairfield matter”).

15. It is found that the Fairfield matter, described in paragraph 14, above, was noticed as item #7 on the meeting agenda.

16. It is found that agenda item #7 as noticed indicates:

Natural Resources Removal Application, Rock Acquisition Limited Partership/Fairfied Resources Mfg., Inc. by Robert W. Parker, 98 Laurel Hill Road and North Mountain Road -(Cont’d.)

17. It is found that agenda item #7, as described in paragraph 16, above, provides notice that the respondent would consider the “application” concerning the Fairfield matter.

18. Section 1-21(a), G.S., provides in relevant part:

Upon the affirmative vote of two-thirds of the members of the public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings. [Emphasis added.]

19. It is found that it was not necessary for the respondent to take a two-thirds vote to add the Fairfield matter to the agenda, as such matter was not “subsequent business” not included in the agenda.

20. It is therefore concluded that the respondent did not violate §1-21(a), G.S., as notice of the Fairfield matter, as described in paragraph 16, above, was adequate to apprise the complainant that business concerning the Fairfield matter would be conducted at the meeting.

21. The Commission declines to issue a null and void remedy in this matter.

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 allegation, as described in paragraph 2a. of the findings, above, the respondent shall henceforth strictly comply with §1-21(a), G.S., with respect to stating the reasons for executive sessions as defined in §1-18a(e), G.S., prior to convening in executive session.

2. With respect to the allegations, as described in paragraph 2b. i, 2b. ii, 2c., 2d. and 2e. of the findings, above, the complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 25, 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:

William J. Raymond, Jr. and Angela D. Raymond

c/o Nancy Burton, Esq.

147 Cross Highway

Redding Ridge, CT 06876

Zoning Commission, Town of Brookfield

c/o Francis J. Collins, Esq.

148 Deer Hill Avenue

P.O. Box 440

Danbury, CT 06810

__________________________

Elizabeth A. Leifert

Acting Clerk of the Commission