“Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.  "Meeting" shall not include:  Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. 

 

4.      Section 1-226(a), G.S., provides in relevant part that “(t)he meetings of all public agencies . . . shall be open to the public.”

 

5.      It is found that on or about August 10, 2000, the zoning enforcement officer (hereinafter “ZEO”) to the City of Stamford issued a certificate of zoning compliance to Grade A Market in connection with its proposal to construct a new supermarket in that city.

 

6.      It is found that in September of 2000, the complainants appealed the ZEO’s decision to the respondent board which held a hearing on the appeal on November 8, December 13, and December 28, 2000.  

 

7.      It is found that the complainants were present at and participated in the hearing on all three dates.

 

8.      With respect to the complainants’ allegation concerning the December 13, 2000 hearing, it is found that the respondent took a recess to seek legal counsel regarding whether or not the complainants had a right to cross examination during the hearing proceedings.

 

9.      It is found that counsel for the respondent board took approximately ten minutes to research the issue and informed the members of the respondent board during a brief conference, outside of the purview of the public, that the complainants had a right to limited cross examination.

 

10.  At the hearing on this matter, the respondent maintained that the conference was appropriate because it was extremely brief and limited to receiving a legal opinion from its attorney.

 

11.  It is found that although the conference described in paragraph 8, above, was limited to receipt of information from the respondent’s attorney and no substantive discussion by the respondent board occurred, §1-231(b), G.S., provides in relevant part that:

 

“[a]n executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client privilege relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200.”

 

12.  Section 1-200(6), G.S., provides in relevant part that:

 

Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (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;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (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.

 

13.  It is found that the respondent did not claim nor was any evidence presented to support a finding that the discussion during the conference described in paragraph 8, above, was for a purpose explicitly permitted pursuant to subdivision (6) of §1-200, G.S.

 

14.  Therefore, it is concluded that the respondent board violated the provisions of §1-225(a), G.S., by excluding the public and the complainants from the discussion during the conference described in paragraph, 8, above.

 

15.  With respect to the complainants’ allegation concerning the December 28, 2000 hearing, §1-200(2), G.S., it is found that at the start of the December 28, 2000 hearing, it was brought to the attention of the respondent board that the legal notice of the hearing might not have been proper and a recess was taken.

 

16.  It is found that there were conflicting opinions regarding the propriety of the legal notice of the December 28, 2000 hearing and during the recess, the respondent board discussed the notice and considered canceling the December 28, 2000 hearing and rescheduling it so that a legal notice could be issued that was definitely proper. 

 

17.  It is found that during the recess, the respondent board considered the fact that one of its members might not have been available to attend a rescheduled hearing because he was going to be appointed to serve on another committee and might have to resign as a member of the respondent board before the date of that hearing. 

 

18.  It is found that, in that regard, the respondent chairman made a telephone call to another municipal officer to determine if the board member’s appointment could be postponed until a date after the hearings on the appeal were concluded.

 

19.  It is found that after the board member indicated that he would attend a rescheduled hearing regardless of his impending appointment to another committee, the respondent board decided that it would reschedule the meeting and post legal notice of it in a manner that it was confident was proper.

 

20.  It is found that during the recess, several other discussions occurred in addition to the discussion described in paragraphs 15 through 19, above.  Specifically a discussion between the respondent board’s attorney and the respondent board regarding the propriety of the legal notice; a discussion between the respondent board’s attorney and the attorneys for Grade A Market; and telephone conversations between other attorneys present at the hearing and either their wives or their offices.

 

21.  With respect to the discussion between the respondent board’s attorney and the attorneys for Grade A Market and the telephone conversations between other attorneys present at the hearing and either their wives or their offices, it is found that such discussions do not constitute meetings within the meaning of §1-200(2), G.S.

 

22.  With respect to the balance of the discussions held by the respondent board during the recess of the December 28, 2000 hearing as described in paragraph 15 through 20, above, it is found that such discussions constituted communications limited to notice of a meeting or the agenda thereof within the meaning of §1-200(2), G.S., and did not constitute a meeting under the FOI Act. 

 

23.  With respect to the complainants’ allegation described in paragraph 2b, above, it is found that the complainants claimed that during the recess of the December 28, 2000 hearing, the respondent board’s attorney held “ex parte conferences” with the attorneys for Grade A Market.

 

24.  It is found that even if such “conferences” occurred and were ex parte, the complainant’s claim does not allege a violation of the FOI Act.

 

25.  It is concluded therefore that the respondent board did not violate §1-225(a), G.S., as alleged by the complainants with respect to the December 28, 2000 hearing. 

 

 

 

On the basis of the record concerning the above captioned complaint, no order is recommended by the Commission. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 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:

 

George Bongiorno and

Bongiorno Supermarket, Inc.

c/o Steven R. Smart, Esq.

Riefberg, Smart, Donohue & NeJame, PC

17 Downs Street

Danbury, CT 06810

 

Zoning Board of Appeals,

City of Stamford

c/o Barry J. Boodman, Esq.

Assistant Corporation Counsel

City of Stamford

888 Washington Boulevard, PO Box 10152

Stamford, CT 06904-2152

 

Grade A Market

c/o Maureen Danehy Cox, Esq. and

James K. Robertson, Jr., Esq.

Carmody & Torrance LLP

50 Leavenworth Street, PO Box 1110

Waterbury, CT 06721-1110

 

 

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2001-016/FD/paj/12/18/2001