The above-captioned matter was heard as a contested case on April 16 and May 
28, 1998, at which times the complainants 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(a), G.S.

	2.  By letter dated December 9, 1997, and filed with the Commission on 
December 10, 1997, the complainants appealed to the Commission alleging that the 
respondents violated the Freedom of Information Act (“FOIA”) by holding “a meeting 
without proper notice and consider[ing] a non-agenda item at a regular meeting” on a 
basis that was “predetermined”.

	3.  By letter dated December 11, 1997, and filed with the Commission on 
December 15, 1997, counsel for the complainants supplemented the complaint with a 
request that the actions of the respondent Board at the meeting held on December 2, 1997 
be declared null and void and that maximum civil penalties be assessed against the 
respondents.

	4.  Section 1-21, G.S., provides in pertinent part:

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

	5.  It is found that respondent Gallow, while a member of the respondent Board, 
himself applied to the respondent Board for a variance and recused himself from any 
action as a member of the respondent Board on such application. Respondent Gallow’s 
application received a three to one affirmative vote at the November 5, 1997 meeting of 
the respondent Board. However, since four affirmative votes were required for the 
respondent Board to grant a variance, the respondent Board did not grant a variance to 
respondent Gallow at its November 5, 1997 meeting.

	6.  It is found that, at the November 5, 1997 meeting of the respondent Board, the 
chairperson, respondent St. Ament, overlooked appointing Hollis Hooper to be a voting 
member to act in the place of respondent Gallow, and that but for this oversight, Mr. 
Gallow’s variance application would have received the four votes necessary for the 
variance to be granted. It is also found that the attorney for the complainant as well as a 
staff member of the respondent Board persuaded the respondent St. Ament not to conduct 
a re-vote at the November 5, 1997 meeting, which re-vote would have resulted in four 
votes for the variance.

	7.  It is found that, following the newspaper publication of a denial of respondent 
Gallow’s variance application, which members of the respondent Board had generally 
believed had been approved at the November 5, 1997 meeting, there was some discussion 
among individual members of the respondent Board  (specifically between respondent St. 
Ament and respondent Zak, and between respondent Rizer and respondent Zak) prior to 
the December 2, 1997 meeting of the respondent Board. The relevant sworn testimony 
was that these discussions extended only to the need to do something at the next meeting 
of the respondent Board to correct an inaccurate reflection of the actions of the 
respondent Board at its November 5, 1997 meeting. The Commission does not have 
evidence in the record to hold otherwise. 

	8.  It is found that the agenda posted for the December 2, 1997 meeting included 
an item to “review and act on minutes of November 5, 1997” meeting, but did not include 
any item for action to approve the variance application of respondent Gallow.  It is also 
found that the complainant Frances Jernstrom would have attended the December 2, 1997 
meeting of the respondent Board if the agenda had included an item for action to approve 
the variance application of respondent Gallow.

	9.  It is found that there was no vote of two-thirds vote of the respondent Board to 
add as subsequent business an item for action to approve the variance application of 
respondent Gallow, and that the respondent Board took up the variance application 
following discussion of the minutes of November 5, 1997. It is also found that the four to 
one vote to grant the variance application represented more than the two-thirds that was 
necessary to bring the matter properly before the respondent Board.

	10.  It is concluded that the respondents violated §1-21, G.S. when, without first 
recording a two thirds vote to do so, they took up a motion to approve the variance 
application of respondent Gallow (which is different business than a motion to correct 
minutes).

	11.  However, the Commission, in its discretion, declines to assess civil penalties 
against the respondents. 

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

	1. The vote to approve the variance application of respondent Gallow taken at the 
December 2, 1997, meeting of the Plainfield Zoning Board of Appeals is hereby declared 
null and void.

	2.  Henceforth, the respondent Board shall not take up any subsequent business 
not listed on its posted agenda without first recording a two thirds vote to do so.

	Approved by Order of the Freedom of Information Commission at its regular 
meeting of August 26, 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:

Roland Jernstrom and Frances Jernstrom
c/o Atty. B. Paul Kaplan
643 Norwich Road
Plainfield, CT 06374

Carol St. Ament; Frank Zak; James Gallow; 
Thomas Rizer; and Hollis Hooper, as members 
of the Zoning Board of Appeals, Town of Plainfield; 
and Zoning Board of Appeals, Town of Plainfield
c/o Atty. Michael P. Carey
Brown, Jacobson, Tillinghast, Lahan & King, P.C.
22 Courthouse Square
Norwich, CT 06360

__________________________
Doris V. Luetjen
Acting Clerk of the Commission

FIC1997-406/FD/tcg/08281998