FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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David B. Ennis, |
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Complainants
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against
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Docket
#FIC 2001-183 |
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First Selectman, Town of
Willington; and Board of
Selectmen, Town of Willington, |
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Respondents
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October
24, 2001 |
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The above-captioned matter was heard as a contested case on May 17,
2001, 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 §1-200(1),
G.S.
2. It is found that the
complainant is a member of the three-member respondent board.
3. It is found that the
respondent board held a regular meeting on March 19, 2001, and that, during
such meeting, the complainant suggested that a special meeting be held on
March 26, 2001 [hereinafter “the special meeting”], so that time could be
devoted to studying the budget. It
is further found that the complainant also requested that the respondent board
table a decision on a resolution to sign a construction agreement with the
state of Connecticut, until the special meeting.
4. By letter dated and
filed with the Commission on April 4, 2001, the complainant alleged that the
respondents violated the Freedom of Information [hereinafter “FOI”] Act
by:
a) failing to mail notice of the
special meeting to his home;
b) posting notice of the special
meeting outside, rather than inside, the office of the Willington town clerk;
and
c) improperly entering an executive
session during the special meeting.
The complainant
asked that the actions taken at the special meeting be declared null and void.
5.
It is found that the respondents filed a notice of the special meeting
with the Willington Town Clerk on March 23, 2001 at 2:00 P.M., and that such
notice included the following agenda items:
1. Budget
2. Capital Improvement Plan
3. Village Bridge Contract
4. Executive Session - Potential
legal claims.
6. It is found that, on
March 23, 2001, the complainant reviewed the notice and agenda described in
paragraph 5, above, and at such time, added by hand an additional agenda item,
specifically “Town Meeting Call.” It
is also found that the complainant filed the notice containing the new agenda
item with the Willington Town Clerk.
7. It is found that, on
Monday, March 26, 2001, the complainant observed the agenda described in
paragraph 5, above, posted on a glass-covered bulletin board labeled
Willington Public Notices on the outside of the town office building.
It is further found that the posted notice did not include the
handwritten item described in paragraph 6, above.
It is further found that the Willington town clerk posts all filed
notices of public meetings on such board, and has done so for several years.
8. It is found that, at
12:02 P.M. on March 26, 2001, the complainant filed with the Willington Town
Clerk a notice of cancellation of the special meeting.
9. It is found that the two other members of the respondent
board held the special meeting on March 26, 2001, and that the complainant did
not attend such meeting. At the
hearing in this matter, the complainant contended that, intentionally, he did
not attend the special meeting because he believed it to be illegal, since he
had not received written notification at his home, and since the notice of
such meeting was posted outside, rather than inside, the office of the town
clerk.
10. It is found that, during the
special meeting, the two other members of the respondent board followed the
agenda described in paragraph 5, above.
11. It is found that, during the special meeting, the respondent
board met with town counsel in executive session for approximately fifteen
minutes and discussed a confidential written opinion from such counsel
concerning a potential legal claim.
12. It is found that at
12:10 PM, on March 28, 2001, the respondents filed with the town clerk a
notice of clarification of the special meeting, which stated that the
complainant filed the notice of cancellation described in paragraph 8, above,
without authorization.
13. With respect to the
allegation described in paragraph 4.a, above, §1-225(d),
G.S., provides in relevant part that:
…written notice [of special meetings] shall be
delivered to the usual place of abode of each member of the public agency
so that the same is received prior to such special meeting. The requirement of delivery of such written notice may be
dispensed with as to any member who at or prior to the time the meeting
convenes files with the clerk or secretary of the public agency a written
waiver of delivery of such notice. Such
waiver may be given by telegram. The
requirement of delivery of such written notice may also be dispensed with
as to any member who is actually present at the meeting at the time it
convenes.
14. It is found that the
respondent board typically notifies its members of special meetings by placing
notices in such members’ individual folders at town hall, and that such
procedure has been in place without complaint for several years.
It is also found that the respondents notified the complainant in such
manner with respect to the special meeting at issue in this matter.
It is further found that the special meeting was called at the
complainant’s suggestion, as described in paragraph 3, above, and that the
complainant had actual notice of the special meeting prior to the convening of
such meeting.
15. It is concluded that
the purpose of the statute described in paragraph 13, above, is to ensure that
members of public agencies are aware of upcoming special meetings;
nevertheless it is further concluded that the respondents technically violated
§1-225(d),
G.S., by failing to deliver to the complainant’s home written notice of the
special meeting, within the meaning of §1-225(d),
G.S.
16. With respect to the
allegation described in paragraph 4.b, above, §1-225(d),
G.S., further provides in relevant part that:
[n]otice of each special meeting of every public
agency… shall be given not less than twenty-four hours prior to the time
of such meeting by filing a notice of the time and place thereof in the
office of the…clerk of such subdivision for any public agency of a
political subdivision of the state….The secretary or clerk shall cause
any notice received under this section to be posted in his office.
[Emphasis added].
17. It is found that the
respondents timely filed the notice of the special meeting, as required by §1-225(d),
G.S. It is further found that the
duty to post special meeting notices rests with the town clerk, and not with
the respondents. Accordingly, it is concluded that the respondents did not
violate §1-225(d),
as alleged in paragraph 4.b, above.
18. With respect to the
allegation described in paragraph 4.c, above, §1-225(a),
G.S., provides in relevant part that “[t]he meetings of all public
agencies, except executive sessions as defined in subdivision (6) of section
1-200, shall be open to the public….”
19. Section 1-200(6), G.S.,
defines "executive session" to mean in relevant part:
a meeting of a public agency at which the public
is excluded for one or more of the following purposes…
(B) strategy and negotiations with respect to
pending claims or pending litigation to which the public agency or a
member thereof, because of his conduct as a member of such agency, is a
party until such litigation or claim has been finally adjudicated or
otherwise settled…(E) discussion
of any matter which would result in the disclosure of public records or
the information contained therein described in subsection (b) of section
1-210.
20. At the hearing in this
matter, the complainant contended that the executive session was improper,
since there was no pending claim or litigation before the respondent board.
The respondents, however, contended that they properly met in executive
session to discuss an attorney-client privileged opinion of town counsel.
21. Section 1-210(b)(10),
G.S., in relevant part, permits the nondisclosure of “…communications
privileged by the attorney-client relationship.”
22. The exemption for
attorney-client privileged communications contained in §1-210(b)(10),
G.S., is limited to the following circumstances in accordance with established
Connecticut law:
Where legal advice of any kind is
sought from a professional legal adviser in his capacity as such, the
communications relating to that purpose, made in confidence by the client, are
at his instance permanently protected from disclosure by himself or by the
legal adviser, except the protection may be waived.
Lafaive v. DiLoreto, 2 Conn. App. 58, 65 cert.
denied, 194 Conn. 801 (1984).
23. It is found that the
written opinion described in paragraphs 11 and 20, above, constituted legal
advice sought from a professional legal adviser, within the meaning of §1-210(b)(10),
G.S., and it is therefore concluded that such opinion was a communication
privileged by the attorney-client relationship, within the meaning of such
provision.
24. It is concluded that the respondents did not violate §§1-225(a)
and 1-200(6), G.S., as alleged
in paragraph 4.c, above, when they discussed the opinion in executive session.
It is noted, however, that the agenda for the special meeting should
have been more explicit in stating the reason for the executive session,
within the meaning of §1-225(f), G.S.
Based on the record concerning the above-captioned complaint, no order
by the Commission is recommended
Approved by Order of the Freedom of Information
Commission at its regular meeting of October 24, 2001.
_______________________________________
Petrea A. Jones
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:
David B. Ennis
32 Luchon Road
Willington, CT 06279
First Selectman, Town of
Willington; and Board of
Selectmen, Town of Willington
c/o Carole W. Briggs, Esq.
C. W. Briggs & Associates, P.C.
45 Glastonbury Boulevard
Glastonbury, CT 06033
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-183/FD/paj/10/30/2001