FIC2002-132

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Gary Linsley,
		Complainants
	against		Docket #FIC 2002-132
Board of Assessment Appeals, Town of Wallingford,
		Respondent	July 24, 2002

The above-captioned matter was heard as a contested case on May 23, 2002, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

2. By letter dated March 21, 2002 and filed on March 25, 2002, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by:

a. holding hearings on March 10, 2002, a Sunday;

b. failing to permit the complainant to attend and tape record hearings held by the respondent or its individual members on March 13, 2002;

c. failing to make agendas, voting records and minutes of hearings available;

d. failing to make certain other records available;

e. adding signatures to assessment appeals that had been accepted without signatures.

3. At the hearing on this matter, the complainant further alleged that the respondent violated the FOI Act by holding hearings on a date that was within 30 days of the date on which the respondent filed its list of regular meetings. However, such issue was not raised in the complaint, is not properly before this Commission and will therefore not be addressed herein.

4. It is found that the respondent filed a revised schedule of regular meetings with the Wallingford Town Clerk (hereinafter “town clerk”) on February 28, 2002, which schedule listed eleven meeting dates and times that the respondent would meet during the month of March. The schedule indicated that the agenda for the March meetings would be “[f]or the hearing and determination of appeals from the doings of the Wallingford Assessor on the Grand List dated October 1, 2001.”

5. It is found that members of the respondent met on the dates and times listed on the regular meetings schedule and that on such dates the three members of the respondent convened as a group, then dispersed to separate locations where each met individually with taxpayers who had filed assessment appeals with the respondent. At some point in time or times on such dates, the three members of the respondent came together again as a group, reviewed and deliberated on the appeals that had been heard individually and then voted on the outcome of each appeal.

6. It is found that the respondent sent notices to each taxpayer who had filed an assessment appeal with the respondent, which notice advised the taxpayer of a specific date and time when the taxpayer’s appeal would be heard. It is further found that the complainant’s wife received such a notice indicating that her assessment appeal would be heard on March 13, 2002.

7. At the hearing on this matter, the complainant further alleged that the notices described in paragraph 6, above, were not mailed in accordance with the time requirements set forth in Chapter 12 of the Connecticut General Statutes. However, such issue was neither raised in the complaint nor is it a matter over which this Commission has jurisdiction and it will therefore not be addressed herein.

8. It is found that the respondent devised the methodology of having members of the respondent individually and simultaneously hear appeals, as described in paragraph 5, above, because it had over four hundred appeals to hear during the month of March, which the respondent believed would be too time consuming for the respondent’s entire members to both hear as a group and make determinations with respect thereto.

9. With respect to the complainant’s allegation described in paragraph 2a., above, it is found that one of the regularly scheduled meetings of the respondent occurred on Sunday, March 10, 2002.

10. The complainant contends that pursuant to §12-110, G.S., the respondent is prohibited from holding a meeting on a Sunday.

11. Section 12-110(b), G.S., provides that:

“The board of assessment appeals in each town shall meet in the month of March to hear appeals related to the assessment of property. Any such meeting shall be held on business days, which may be Saturdays, the last not later than the last business day in the month of March, on or before which date such board shall complete the duties imposed on it.”

12. There is nothing in the FOI Act that prohibits a public agency from holding a meeting on a Sunday.

13. Although §12-110(b), G.S., places certain restrictions on the respondent concerning dates and times on which the respondent may hear appeals, the Commission lacks jurisdiction to enforce the specific provisions contained therein.

14. It is therefore concluded that the respondent did not violate the FOI Act by holding a meeting on Sunday, March 10, 2002, as alleged in paragraph 2a., above.

15. With respect to the complainant’s allegation described in paragraph 2b., above, concerning the respondent’s denying the complainant his rights to access and to tape-record hearings of the respondent held on March 13, 2002, it is found that the complainant appeared on March 13, 2002 at the time of the regularly scheduled meeting of the respondent and attempted to observe one of the sessions, other than his wife’s, that was being conducted by one of the members of the respondent.

16. It is further found that the chairman of the respondent told the complainant that he could not attend or tape-record the individual sessions. Thereafter, the complainant left the room and sat outside the door of the room where one of the appeals was being heard.

17. Section 1-225(a), G.S., provides in relevant part that “the meetings of all public agencies, except executive sessions…shall be open to the public.”

18. Section 1-200(2), G.S., defines a meeting of a public agency as:

“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.”

19. Further, in relevant part, §1-226(a), G.S., provides that:

“At any meeting of a public agency which is open to the public, pursuant to the provisions of section 1-225, proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person….”

20. The respondent contends that all of the sessions presided over by individual members of the respondent during the month of March 2002, including those held on March 13 were not “meetings” of the respondent within the meaning of §§1-200(2) and 1-225(c), G.S.; rather, the respondent maintains that such sessions were information gathering sessions only, not subject to the open meeting provisions of the FOI Act. The respondent further maintains that the only time the respondent conducted meetings within the meaning of §§1-200(2) and 1-225(c), G.S., was when the individual members of the respondent came together as a group to review, deliberate and vote on the assessment appeals, and that all of those meetings were held in public.

21. Finally, the respondent maintains that since the information gathering sessions were not meetings of the respondent, the complainant had no right to tape-record such sessions pursuant to §1-226(a), G.S.

22. In support of their contentions described in paragraphs 21 and 22, above, the respondent produced a 1979 legal opinion of a town attorney in New Haven concerning local board of tax review meetings and cited to Bugbee v. Town of Putnam, Supreme Court of Errors of Connecticut, March 15, 1916.

23. It is found that the notice provided to the taxpayer and the schedule of regular meetings and agenda filed by the respondent all indicate that such sessions are hearings of the respondent.

24. It is also found that the assessment appeals presided over by individual members of the respondent constituted more than “information gathering” sessions, as claimed by the respondent. Such sessions represented the taxpayer’s opportunity to come before the respondent and make a case as to why his or her assessment should be adjusted.

25. It is further found that a 1979 opinion of a town attorney from another city with regard to another agency does not constitute a federal law or state statute that would supersede the provisions of the FOI Act.

26. It is further found that neither the opinion letter nor Bugbee, supra, (which also predates the enactment of the FOI Act) address the issue before this Commission as to whether hearings of assessment appeals by individual members of a public agency constitute meetings under the FOI Act. Rather, both address the issue and conclude in the affirmative, that a public agency may have individual members hear appeals, as long as the agency meets as a group to arrive at a decision on such appeals.

27. For the reasons set forth in paragraph 25 and 26, above, it is concluded that neither the 1979 opinion nor the decision in Bugbee, including the reasoning therein, have any application in this case.

28. It is further found, for the reasons set forth in paragraphs 23 and 24, above, that the sessions presided over by individual members of the respondent during March 2002, including those that occurred on March 13, 2002, constituted “hearings or proceedings” of a public agency and therefore constituted “meetings” of the respondent within the meaning of §1-200(2), G.S., which should have been open to the public pursuant to §1-225(a), G.S.

29. It is therefore concluded that the respondent violated the provisions of §1-225(a), G.S., by failing to permit the complainant to attend the hearings or proceedings of the respondent on March 13, 2002, as alleged in paragraph 2b., above.

30. It is further concluded that the respondent violated the provisions of §1-226(a), G.S., by failing to permit the complainant to tape-record the hearings or proceedings of the respondent held on March 13, 2002, as alleged in paragraph 2b., above.

31. With respect to the complainant’s allegation described in paragraph 2c., above, concerning the respondent’s failing to make agendas, voting records and minutes of hearings available, it is found that on or about March 1, 2002, the complainant visited the town clerk’s office and requested access to the respondent’s agendas for the upcoming hearings of the respondent. The complainant maintains that as of the time he filed the complaint in this matter, no agendas were available.

32. It is further found that sometime in March 2002 before filing the complaint in this matter, the complainant asked the town clerk for voting records and minutes for the respondent’s hearings. The complainant maintains that such records were not available.

33. With respect to agendas, §1-225(c), G.S., provides in relevant part:

“The agenda of the regular meetings of every public agency…be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business or, if there is no such office or place of business…in the office of the clerk of such subdivision for any public agency of a political subdivision of the state….”

34. It is found that the respondent does not create or maintain records that are officially entitled “agenda” for its hearings. However, it is found as noted in paragraph 4, above, that the respondent’s list of regularly scheduled meetings indicates the agenda for all of the hearings listed. In addition, the respondent maintains an “appointment list” indicating the specific dates and times on which each of the appeals were scheduled to be heard. It is found that the list of regularly scheduled meetings was available at the town clerk’s office at all times relevant to this appeal and that the appointment list was made available to the complainant sometime in March 2002 when he visited the town clerk’s office.

35. With respect to minutes, §1-210(a), G.S., in relevant part, requires that “[e]ach such [public] agency shall make, keep and maintain a record of the proceedings of its meetings.

36. With respect to both minutes and voting records §1-225(a), G.S., further provides in relevant part:

“The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.”

37. It is found that the respondent does not create or maintain records that are officially entitled “minutes” nor does it create a separate document of its voting records. The respondent contends that its voting records and minutes are reflected on the individual appeal packages, consisting of the taxpayer’s application, supporting documentation, notification on the outcome of the appeal and the votes taken on the appeal by the respondent. The respondent further contends that such packages in their entirety were delivered to the town clerk’s office around April 1, 2002, after it concluded hearing all of the appeals; and that prior to April 1, 2002, the appeal packages for those appeals that had already been heard were at all times available from the town’s assessor.

38. It is found that when the complainant visited the town clerk’s office sometime in March, the assessor did assist the complainant and, in fact, provided him with an opportunity to inspect the appeal package records.

39. Sections 1-210(a) and 1-225(a), G.S., are construed to require a minutes document, not merely an undesignated collection of records from which determinations of a public agency may be discerned.

40. It is therefore concluded that the respondent violated §§1-210(a) and 1-225(a), G.S., by failing to create, maintain and make available to the public minutes of its meetings that occurred in March 2002, as alleged in paragraph 2c., above.

41. Although it is unclear from the record specifically when the complainant requested access to the voting records and minutes of the respondent and whether the record of votes were available for inspection within the time requirements set forth in §1-225(a), G.S., the Commission construes the facts in favor of the respondent on this issue, since the complainant could not provide such specificity, the appeal packages containing the record of votes were in fact made available to him by the assessor and the respondent’s contention that the records were available at all times, as described in paragraph 34, above.

42. It is concluded therefore that the respondent did not violate the provisions of §§1-225(a) and (c), G.S., with respect to the availability of its agendas or voting records, as alleged in paragraph 2c., above.

43. With respect to the complainant’s allegation described in paragraph 2d., above, concerning the respondent’s failure to make certain other records available, it is found that the complainant stated that he made requests to the town assessor, town attorney and town clerk for various records concerning the respondent and that the only one who responded to his requests was the town clerk.

44. It is found however that neither the assessor, town attorney nor the town clerk are respondents in this matter. Therefore, the Commission lacks jurisdiction over such individuals.

45. Further, it is found that although the town clerk maintains records on behalf of the respondent, the complainant did not clarify with sufficient precision what additional records were not available when he requested them from the town clerk. Rather, the complainant made some general assertions that certain records were not available; however, the respondent contends that all of its records are on file with the town clerk’s office.

46. Given the findings in paragraph 45, above, it is therefore found that the Commission has insufficient evidence to conclude that the respondent failed to make certain other records available to the complainant; and it is consequently concluded that the respondent did not violate the FOI Act in connection with the allegation described in paragraph 2d., above.

47. With respect to the complainant’s allegation described in paragraph 2e., above, that the respondent added signatures to assessment appeals, the complainant maintains that the respondent improperly altered public documents in violation of §1-240, G.S.

48. Section 1-240(a), G.S. provides:

“Any person who wilfully, knowingly and with intent to do so, destroys, mutilates or otherwise disposes of any public record without the approval required under section 1-18 or unless pursuant to chapter 47 or 87l, or who alters any public record, shall be guilty of a class A misdemeanor and each such occurrence shall constitute a separate offense.”

49. It is found that there is no evidence in the record to substantiate the complainant’s allegation that the respondent added signatures to appeals, as described in paragraph 2e., above.

50. Further, even if there were evidence of the nature set forth in paragraph 49, above, the Commission lacks jurisdiction to prosecute the provisions of §1-240, G.S., because such statute implicates the criminal laws of this state.

51. It is therefore concluded that the respondent did not violate the FOI Act, as alleged in paragraph 2e., above.

52. In his letter of complaint, the complainant asked the Commission to consider declaring all of the hearings or proceedings of the respondent described in paragraph 5, above, null and void. The Commission declines to order the relief requested by the complainant under the facts and circumstances of this case.

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

1. Henceforth, the respondent shall strictly comply with the provisions of §§1-210(a) and 1-225(a), G.S., with respect to minutes and permitting members of the public to attend its hearings or proceedings on assessment appeals, presided over by its individual members, as described in paragraph 5, of the findings, above.

2. Henceforth the respondent shall likewise strictly comply with the provisions of §1-226(a), G.S., with respect to permitting members of the public to tape-record its hearings or proceedings on assessment appeals, presided over by its individual members, as described in paragraph 5, of the findings, above.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 2002.

_______________________________________

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:

Gary Linsley

520 Ward Street Ext.

Wallingford, CT 06492

Board of Assessment Appeals,

Town of Wallingford

c/o Gerald E. Farrell, Sr., Esq.

Assistant Town Attorney

Town of Wallingford

45 South Main Street

Wallingford, CT 06492

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-132/FD/paj/7/29/2002