FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| MaryEllen Wazorko and Cynthia Rogers, | |||
| Complainants | |||
| against | Docket #FIC 2002-174 | ||
| Zoning Board of Appeals, Town of Plainville, | |||
| Respondent | August 28, 2002 | ||
The above-captioned matter was heard as a contested case on June 20, 2002 at which time the complainants and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated April 14, 2002 and filed on April 17, 2002, the complainants appealed to this Commission alleging that the respondent board violated the Freedom of Information (“FOI”) Act by meeting to discuss agency business prior to, and by improperly conducting an executive session during, its April 8, 2002 meeting.
3. Section 1-200(2), G.S., provides in relevant part that
“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.
4. Section 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.”
5. It is found that on April 8, 2002, the respondent board held a public hearing on certain zoning appeal applications.
6. It is found that members of the respondent board gathered together in a separate room prior to the April 8, 2002 public hearing.
7. At the hearing on this matter the complainant Wazorko claimed that although she does not know what was being discussed among the members of the respondent board, she believes they were conducting a meeting because she was told that she could not be in the room with them at that time.
8. It is found that the respondent board, as a practice, waits in a room separate from that in which its meeting are held for a quorum of its members to arrive.
9. It is found that there is no evidence in the record in this matter to support a finding that the respondent board discussed or acted upon a matter over which it has supervision, control, jurisdiction or advisory power prior to the April 8, 2002 public hearing.
10. Consequently, it is found that the gathering of the members of the respondent board prior to its April 8, 2002 hearing did not constitute a “meeting” within the meaning of §1-200(2), G.S.
11. It is found that during the April 8, 2002 public hearing, the chairman of the respondent board called for a recess during which the respondent board met in a closed session to deliberate on the applications.
12. It is found that at the conclusion of the recess, the respondent board reconvened the public hearing and voted on the applications, with some deliberation and discussion prior to such votes.
13. At the hearing on this matter, the respondent board claimed that it did not intend to conduct an executive session but rather simply believed that it was permitted to conduct its deliberations in a closed session outside the purview of the public.
14. It is found that the respondent board improperly excluded the public from a portion of its April 8, 2002 public hearing since the deliberations described in paragraph, 10, above, do not constitute a proper purpose for an executive session within the meaning of §1-206, G.S., and it is therefore concluded that it violated the open meetings provision of §1-225(a), G.S.
15. At the hearing on this matter the complainants requested that this Commission null and void the respondent board’s public hearing of April 8, 2002 and the actions taken. The complainants also requested that the Commission order the respondent board to convene another public hearing, conduct its deliberations in open session and hold another vote on the applications considered at the April 8, 2002 public hearing.
16. It is found that the respondent board had a practice of deliberating on applications in closed session.
17. It is found that the respondent’s violation of §1-225(a), G.S., is unconscionable given the widespread knowledge of the FOI Acts open meetings requirements and that the respondent board has several long standing members who could have and should have been aware of such a fundamental requirement.
18. Nonetheless, on the basis of the entire record in this case, the Commission declines to null and void the respondents April 8, 2002 public hearing or any of the actions taken at the respondent board’s April 8, 2002 public hearing, as such an order would only serve to frustrate the applicants and their appeals and would not provide a meaningful remedy for the complainants.
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 open meetings provision of §1-225(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 28, 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:
MaryEllen Wazorko
8 Usher Avenue
Plainville, CT 06062
Cynthia Rogers
63 Farmington Avenue
Plainville, CT 06062
Zoning Board of Appeals,
Town of Plainville
c/o Robert A. Michalik, Esq.
Eisenberg, Anderson, Michalik & Lynch LLC
136 West Main Street
PO Box 2950
New Britain, CT 06050-2950
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2002-174/FD/paj/8/30/2002