FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Ray Burton; Jonathan Kellogg; and Waterbury Republican-American, |
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Complainants |
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against |
Docket #FIC 2002-130 | |
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Parcel C Committee, Borough of Naugatuck, |
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Respondent |
April 16, 2002 | |
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The above-captioned matter was heard as a contested case on April 12, 2002, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
The preliminary hearing in this matter was convened pursuant to §1-206(b)(1), G.S., to determine whether there is probable cause to believe that an announced decision of the respondent, or an ongoing practice of the respondent, to meet in executive session is in violation of §§1-200 and 1-225, G.S.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter of complaint dated April 8, 2002, and filed with the Commission on April 9, 2002, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by announcing a schedule of meetings for April 15 and April 17, 2002, at which developers would make presentations for proposed plans of development, and by further announcing that the public would be excluded from those meetings.
3. As a preliminary matter, the respondent moves that this complaint be dismissed because service of the notice of hearing was not timely made upon any party.
4. Specifically, the respondent maintains that the Commission’s service of notice on the Naugatuck town clerk at 9:34 a.m. on April 10, 2002, was insufficient because the Naugatuck borough clerk, not the town clerk, is the agent for service of process on the now-merged town and borough of Naugatuck.
5. Section 1-206(b)(1), G.S., provides in relevant part:
If a notice of appeal concerns an announced agency decision to meet in executive sessions, for a stated purpose, the commission or a member or members of the commission designated by its chairperson shall serve notice upon the parties in accordance with this section and hold a preliminary hearing on the appeal within seventy-two hours after receipt of the notice, provided such notice shall be given to the parties at least forty-eight hours prior to such hearing.
6. Section 1-206(b)(1), G.S., also provides in relevant part:
Upon receipt of such notice [of appeal], the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission.
7. The Commission takes administrative notice of the fact that service was made on the respondent by delivering notices to a marshal on April 9, 2002 for service on the following individuals: Mayor Joan B. Taf, Deputy Mayor Robert Mezzo, the town clerk of Naugatuck, and attorney Kevin McSherry.
8. The Commission takes administrative notice of the fact that service by certified or registered mail, as specified in §1-206(b)(1), G.S., would not ordinarily satisfy the additional requirement of §1-206(b)(1), G.S., that notice be given to the parties within twenty-four hours after the Commission’s receipt of the notice of appeal.
9. Regulations of Connecticut State Agencies §1-21j-26(c) provides
Service by the commission. A copy of any document served by the commission, showing the name and address of the person served, and the date, shall be placed in the commission's records and shall be prima facie evidence of such service and the date thereof.
10. The Commission’s records show that the Commission delivered notice on April 9, 2002, to be served by marshal on Mayor Joan B. Taf at the same address as the Naugatuck town clerk.
11. Although disputing timely service on other individuals, the respondent does not contest the reasonable inference that the Mayor was served on or about 9:30 a.m. on April 10, 2002, the same time the Naugatuck town clerk was served at the same address.
12. It is found that the mayor is the chief executive officer of the town, that notices of the respondent’s meetings to its members are issued from the mayor’s office by the mayor’s administrative assistant, that the mayor participates in the meetings of the respondent and appointed its members, and that the respondent’s request for proposals issued from the mayor’s office.
13. It is found that the Naugatuck town clerk forwarded the notice of hearing to the Naugatuck borough clerk by 10:30 a.m. on April 10, 2002.
14. It is found that attorney McSherry, who represents the borough of Naugatuck, was served on April 10, 2002 and notified attorney M. Leonard Caine, who also represents the borough of Naugatuck, by 1:15 p.m. on April 10, 2002.
15. It is found that attorney McSherry turned the notice over to attorney Caine, because attorney McSherry believed, since he had been given notice, that he had been named by the Commission as a party respondent to this matter, and thus attorney McSherry believed he should not also represent the respondent.
16. It is found that the hearing on this matter commenced at approximately 10:45 a.m. on April 12, 2002.
17. It is also found that the respondent suffered no significant prejudice as a result of any delay by any individuals in receiving notice of the hearing.
18. It is concluded that representatives of the respondent received notice of the hearing in this matter more than forty-eight hours prior to the commencement of the hearing.
19. It is also concluded that nothing in §1-206(b)(1), G.S., requires that notice be served on each individual member of the respondent.
20. It is also concluded that the notices provided to various individuals believed by the Commission to represent the respondent was the best notice that could reasonably have been given to the respondent, given the stringent time limitations of §1-206(b)(1), G.S.
21. The respondent’s motion to dismiss is therefore denied.
22. It is found that at the August 8, 2000 meeting of the Naugatuck Board of Mayor and Burgesses, the mayor appointed a sub-committee of the board, known as the “Parcel C Committee,” the respondent in this matter, for the purpose of investigating and making recommendations for the future development of a parcel of real estate owned by the Borough of Naugatuck and known as Parcel C.
23. It is found that the members of the respondent are Deputy Mayor Robert Mezzo, Burgess William Goggin, Sr., Burgess Christian Herb, Mr. Kevin Knowles (a former member of the board), Burgess Robert Neth, and Mayor Joan Taf.
24. It is found that the respondent has been meeting since August 2000, and has continued to meet to the present day.
25. It is found that Parcel C is a 2.2 acre tract located in the center of downtown Naugatuck, and includes an historic building known as Building 25.
26. It is found that the Borough owns Parcel C and Building 25.
27. It is found that the development of Parcel C is of significant importance to the revitalization of downtown Naugatuck, and that its development and the nature of its development is of great concern and interest to the general public.
28. It is found that the respondent requested, in a mailing to some 450 potentially interested developers, proposed plans for the development of this parcel, including the disposition of and improvements to Building 25.
29. It is found that, prior to April 5, 2002, the respondent did not, as a general practice, give public notice of its meetings or make its agendas available to the public.
30. It is found that the respondent met on March 21, 2002 to discuss the scheduling of meetings for the presentation of plans to the committee by interested developers.
31. It is found that the respondent established a schedule of meetings to be held on April 15 and April 17, 2002, and that at each meeting, three developers were to make presentations of proposed plans of development.
32. It is found that the respondent announced that the public would be excluded from the April 15 and 17, 2002 meetings.
33. It is also found that the respondent excluded the complainant Burton from a portion of its March 21, 2002 meeting, convening in executive session for the stated purpose of “contractual matters.”
34. The respondent maintains that it is not a public agency, and that its meetings are not “meetings” within the meaning of §1-200(2), G.S., because a quorum of the board of mayor and burgesses, its parent agency, is not always present.
35. Section 1-200(1), G.S., defines public agency to include:
any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official….
36. It is found that a quorum of the respondent committee attended all of the respondent’s meetings that are at issue in this case.
37. It is concluded that the respondent is a public agency within the meaning of §1-200(1), G.S., and that its meetings are “meetings” within the meaning of §1-200(2), G.S.
38. The respondent maintains it was permitted to exclude the public from its March 21, 2002 meeting, and may similarly exclude the public from its scheduled April 15 and 17 meetings, by virtue of §1-200(6)(D), G.S.
39. Section 1-200(6)(D), G.S., provides that the public may be excluded from a meeting for:
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….
40. It is found that the respondent failed to prove that its proposed interviews with developers would entail discussion of the selection of a site, since the respondent’s request for proposals explicitly assumes development of Parcel C.
41. It is also found that the purpose of the respondent’s scheduled meetings is to discuss the suitability of potential development plans for the site.
42. It is also found that the respondent’s intentions for the site have been well publicized.
43. It is also found that no issue of likelihood of increased price to the borough of sale or purchase arises in this case, since the borough’s plan is to develop land that it already owns.
44. It is also found that the respondent failed to demonstrate how publicity concerning its development plans could cause a likelihood of increased price of construction.
45. Although the respondent argues that increased price to the borough might arise in the event that the borough resells some of the property and then leases it back, or purchases additional nearby property, it is found that such a possibility is speculative, and does not rise to the level of “likelihood” established by the statute.
46. It is therefore concluded that there is probable cause to believe that the respondent has an ongoing practice of meeting in executive sessions in violation of §§1-200 and 1-225, G.S.
47. It is also concluded that there is probable cause to believe that the announced decision of the respondent to meet in executive session is also in violation of §§1-200 and 1-225, G.S.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The respondent Parcel C Committee shall not meet in executive session for the purpose of receiving or discussing proposed plans of development in violation of §§1-200(6) and 1-225, G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of April 16, 2002.
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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:
Ray Burton; Jonathan Kellogg; and
Waterbury Republican-American
Parcel C Committee,
Borough of Naugatuck
c/o M. Leonard Caine, III, Esq.
Caine & Caine
35 Porter Avenue
Naugatuck, CT 06770
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-130/FD/paj/4/16/2002