The above-captioned matter, having been granted an expedited hearing pursuant to § 1-21i(b)(1), G.S., and § 1-21j-43(b) of the Regulations of Connecticut State Agencies, was heard as a contested case on April 14, 1998, 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(1) G.S.

        2. By complaint dated, and filed with the Commission, on March 27, 1998, the complainant alleged that the respondent board and its members violated the Freedom of Information (hereinafter, "FOI") Act by wrongfully denying the citizens of the Town of Somers the right to attend and participate in a special town meeting held on February 26, 1998, because the place where the special town meeting was held could not accommodate the number of citizens who wished to attend. Among other things, the complaint specifically requested that the Commission declare null and void the actions taken at the special town meeting and that it impose civil penalties against those found directly responsible for violation of the FOI Act.

        3. It is found that the February 26, 1998 special town meeting was called by the respondent board to approve the sale of an unused grammar school for $200,000.

        4. It is also found that the February 26, 1998 special town meeting was called to order by the respondent first selectman and that as a first order of business, one James W. Persano, Chairman of the Somers Board of Finance, was nominated and elected moderator of the special town meeting.

        5. Although conflicting evidence was introduced, it is further found by the weight of the credible evidence presented that there were more people who wished to attend the February 26, 1998 special town meeting than could be accommodated in the facility where the meeting was held, yet the meeting was not moved to a larger facility.

        6. Section 1-21(a), G.S., states that "[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-18a, shall be open to the public."

        7. The complainant contends that the respondents, as those responsible for organizing, calling and convening the February 26, 1998 special town meeting, violated the open meetings provision of § 1-21(a), G.S., by failing to provide facilities for the meeting that would accommodate those who wished to attend or by failing to move the special town meeting to an adequate facility once it became evident that the meeting facilities were inadequate to accommodate all who wished to attend.

        8. Section 1-21f, G.S., however, in relevant part reads:

"If it shall be unsafe to meet in the place designated, the meetings may be held at such place as is designated by the presiding officer of the public agency; provided a copy of the minutes of any such meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the . . . the clerk of the political subdivision . . . not later than seventy-two hours following the holding of such meeting." (Emphasis added).

        9. It is found that the moderator was the presiding officer of the special town meeting and, accordingly, was the official, by statute, primarily responsible for implementing § 1-21f, G.S.

        10. Fairly reading the complaint in this matter, it is clear that the allegations of violation of the FOI Act contained therein are directed against the named respondents, and not the moderator of the February 26, 1998 special town meeting.

        11. Consequently, it is concluded that the respondents, although perhaps exercising poor judgment in choosing the facility for the February 26, 1998 special town meeting, did not violate the open meetings provisions of the FOI Act.

        The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

        1. The complaint is hereby dismissed.

        2. Although the complaint was not directed against the moderator of the February 26, 1998 special town meeting and therefore must be dismissed, the Commission urges the respondents to take into consideration the adequacy of facilities issue raised by the complainant when considering the call of future meetings and, to the extent possible, make future town meeting moderators familiar with their obligations under the FOI Act.

        Approved by Order of the Freedom of Information Commission at its regular meeting of April 22, 1998.

_________________________
Doris V. Luetjen
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:
Mark Jones
106 Bilton Road
Somers, CT 07071

Richard Jackson, III
35 Still Meadow Lane
Somers, CT 06071

Phillips Roland, Member
Board of Selectmen - Town of Somers
64 Beverly Drive
Somers, CT 06071

Gordon Mello, Member
Board of Selectmen - Town of Somers
471 Four Bridges Road
Somers, CT 06071

Board of Selectmen, Town of Somers
c/o Carl T. Landolina
Fahey, Landolina, & Associates, LLC
487 Spring Street, Suite 2
Windsor Locks, CT 06096

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1998-087/FD/tcg/04241998