The above-captioned matter was heard as a contested case on February 26, 1998, at which time the complainant and the respondents appeared, 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 letter of complaint dated December 9, 1997 and filed with the Commission on December 10, 1997 the complainant alleged that the respondents violated the Freedom of Information ("FOI") Act by convening in executive session without adequately stating the reason for such executive session. The complainant requested that the Commission impose a civil penalty of $1000.00 upon each official found directly responsible for the violation.

        3. It is found that the respondents held a regular meeting on November 10, 1997 during which they convened in executive session and discussed a notice of intent to sue received by the respondents in connection with the death of a former town of Somers employee.

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

A public agency may hold an executive session as defined in subdivision (6) 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 1-18a.

        5. Section 1-18a(6)(B), G.S., permits a public agency to discuss in executive session "[s]trategy and negotiations with respect to pending claims or pending litigation to which the public agency … is a party until such litigation or claim has been finally adjudicated or otherwise settled." [Emphasis added.]

        6. Section 1-18a(9)(A), G.S., defines "pending litigation" as "[a] written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency."

        7. It is found that the respondents’ discussion of the notice of intent to sue, described in paragraph 3, above, constituted a discussion of strategy with respect to pending litigation within the meaning of § § 1-18a(6)(B) and 1-18a(9)(A), G.S., and therefore, was a proper purpose to be discussed in executive session.

        8. It is found however, that the respondents did not state the reason for the executive session within the meaning of § § 1-21(a) and 1-18a(6), G.S., because they did not state the litigation "to which the public agency … is a party".

        9. At the hearing on this matter, the respondents indicated that had they identified generally the nature of the litigation, there would have been no need for this complaint.

        10. It is concluded that the respondent violated § 1-21(a) and 1-18a(6), G.S., by not stating the litigation "to which the public agency … is a party" prior to convening in executive session.

        11. The Commission takes administrative notice of the final decisions in the following contested cases: FIC 1997-193, Mark Jones v. Richard Jackson III, First Selectman, Town of Somers, Phillips Roland and Allyson Vecchiarelli, as members of the Board of Selectmen, Town of Somers, and Board of Selectmen, Town of Somers, 1997-242, Mark Jones v. Richard Jackson, First Selectman, Board of Selectmen, Town of Somers, Phillips Roland, Allyson Vecchiarelli, as members of the Board of Selectmen, Town of Somers, and Board of Selectmen, Town of Somers, FIC 1995-214, George J. Boisvert v. Robert Percoski, Phillips Roland and Somers Board of Selectmen and FIC 1995-46 Eva J. Brown and Edward Federowich, Jr. v. Charles Colby, Ric Allen, Loyal Madden and Somers Computer Committee and Phillips Rolan, Deborah Numrych, David Palmer, Don Smith, James Botellio and Somers Workflow Ad Hoc Committee.

        12. The Commission notes that the respondents are scheduled to participate in an FOI workshop to be conducted on March 4, 1998 in connection with an agreement reached by the complainant and the respondents in contested case docket #FIC 1997-193, Mark Jones v. Richard Jackson III, First Selectman, Town of Somers, Phillips Roland and Allyson Vecchiarelli, as members of the Board of Selectmen, Town of Somers, and Board of Selectmen, Town of Somers.

        13. In light of the scheduled workshop, the Commission in its discretion, declines to impose civil penalties in this case.

        14. Finally, at the hearing on this matter, the complainant alleged for the first time that the minutes of the respondents’ November 10, 1997 meeting do not adequately apprise the public of a pension issue discussion ("pension issue") that took place at such meeting.

        15. It is found however, that the pension issue allegation, described in paragraph 14, above, was not fairly raised in the complaint and therefore, such allegation is outside of the scope of the issues that may be appropriately addressed by the Commission as a part of this complaint.

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

        1. Henceforth, the respondents shall strictly comply with the executive session provisions of § § 1-21(a) and 1-18a(6), G.S.

        Approved by Order of the Freedom of Information Commission at its regular meeting of May 13, 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:
George J. Boisvert
24 Grist Mill Terrace
Somers, CT 06071

Richard H. Jackson, III
35 Stillmeadow Lane
Somers, CT 06071

Phillips Roland
64 Beverly Drive
Somers, CT 06071

Allyson Vecchiarelli
5 Noah Chapan Drive
Somers, CT 06071

Board of Selectmen, Town of Somers
c/o Atty. Carl T. Landolina
487 Spring Street
Windsor Locks, CT 06096

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-400/FD/tcg/05181998