FIC2002-229

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
William S. Unikewicz,
		Complainants
	against		Docket #FIC 2002-229
Chairman, Board of Assessment Appeals, Town of Portland; and Board of Assessment Appeals, Town of Portland,
		Respondents	October 23, 2002

The above-captioned matter was heard as a contested case on August 21, 2002, 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. By letter dated and postmarked May 16, 2002, and filed with the Commission on May 20, 2002, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act by:

a. failing to notice or post an agenda for a meeting at which the complainant’s tax application was discussed;

b. failing to accurately record the votes of such meeting; and

c. failing to create minutes of such meeting.

3. It is found that the respondents prepared notice of several meetings in one document, entitled “Board of Assessment Appeals March-April 2002,” and such document included notice of the following:

a) meeting on February 22, 2002 (to set hearing schedules - no time indicated);

b) meeting on February 27, 2002 (to set hearing schedules - no time indicated);

c) a series of individual hearings on March 8, 2002 (appellants and properties identified with times set forth);

d) a series of individual hearings on March 9, 2002 (appellants and properties identified with times set forth);

e) a series of individual hearings on March 11, 2002 (appellants and properties identified with times set forth);

f) a series of individual hearings on March 13, 2002 (appellants and properties identified with times set forth);

g) a series of individual hearings on March 18, 2002 (appellants and properties identified with times set forth);

h) a series of individual hearings on March 23, 2002 (appellants and properties identified with times set forth, scheduled to end at 11:00 AM, followed by deliberations, lunch and a site visit);

i) meeting on March 27 (no purpose indicated- time 5:00 PM);

j) meeting on April 1, 2002 (no purpose indicated- time 5:00 PM);

k) meeting on April 6, 2002 (no purpose indicated- time 1:00 PM);

l) meeting on April 8, 2002 (no purpose indicated- time 1:00 PM);

m) meeting on April 13, 2002 (no purpose indicated- time 12:30 PM);

n) meeting on April 18, 2002 (no purpose indicated- time 5:00PM);

o) meeting on April 20, 2002 (no purpose indicated- time 12:00PM)[1].

4. It is found that the respondents held a hearing on March 9, 2002, during which the complainant presented his appeal of the assessment on his property. It is further found that the complainant and all three members of the respondent board attended. It is also found that at the conclusion of the approximately fifteen minute hearing, the respondents informed the complainant that a ruling would be determined at a later date, whereupon the complainant left the room. It is also found that the respondent board conducted twenty-five hearings on such day, including the complainant’s, and that the respondents conducted several hearings for other appellants on various days in March 2002, as described in paragraphs 3.c through 3.h, above.

5. The Commission takes administrative notice of §§12-110 through 12-117(a), G.S., which set forth statutory time requirements to which the respondent board must adhere in completing its duties relative to tax appeals, and the Commission finds that the respondents were required to process several hundred appeals in the time between February and April 2002.

6. It is found that, at some points in time after they conducted the appeal hearings described in paragraphs 3.c through 3.h, above, the three members of the respondent board came together again as a group, reviewed and deliberated on the appeals that had been heard individually and then decided upon the outcome of each appeal. It is further found that the respondents likely discussed the complainant’s appeal on or about April 18, 2002 [hereinafter “the decision meeting”], and that the respondents notified the complainant of the outcome of his appeal by letter dated April 19, 2002, which the complainant received April 24, 2002. It is also found that such letter was signed by all three members of the respondent board and informed the complainant of the outcome of his appeal.

7. It is found that it is the decision meeting of which the complainant complains, as described in paragraph 2, above.

8. At the outset, the respondents contend that the Commission lacks jurisdiction over this matter, alleging that the complaint was not timely filed.

9. Section 1-206(b)(1), G.S., provides in relevant part that:

…[a]ny person denied the right to…attend any meeting of a public agency or denied any other right conferred by the [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken…

[Emphasis added].

10. It is found that the complainant had notice in fact of the decision meeting on April 24, 2002, and that the complaint in this matter was postmarked May 16, 2002, within the thirty-day requirement set forth in §1-206(b)(1), G.S. Accordingly, it is concluded that the Commission has jurisdiction in this matter.

11. Section 1-200(s), G.S., defines “meeting” 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.”

12. With respect to the allegation described in paragraph 2a, above, it is concluded that the decision meeting was a “meeting” of the respondent board, within the meaning of §1-200(2), G.S. It is also found that such meeting was a special meeting of the respondent board, or a continuation of such a meeting.

13. Section 1-225(d), G. S., 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. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting…. The notice shall specify the time and place of the special meeting and the business to be transacted….

14. Section 1-228, G.S., provides in relevant part:

The public agency may adjourn any regular or special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. If all members are absent from any regular meeting the clerk or the secretary of such body may declare the meeting adjourned to a stated time and place and shall cause a written notice of the adjournment to be given in the same manner as provided in section 1-225, for special meetings, unless such notice is waived as provided for special meetings. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular or special meeting was held, within twenty-four hours after the time of the adjournment….

15. Section 1-229, G.S., provides in relevant part:

[a]ny hearing being held, or noticed or ordered to be held, by the public agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of such agency in the same manner and to the same extent set forth in section 1-228, for the adjournment of meeting, provided, that if the hearing is continued to a time less than twenty-four hours after the time specified in the order or notice of hearing, a copy of the order or notice of continuance of hearing shall be posted on or near the door of the place where the hearing was held immediately following the meeting at which the order or declaration of continuance was adopted or made.

16. At the hearing in this matter, members of the respondent testified that, beginning with the deliberations described in paragraph 3.h, they set subsequent times to meet as needed at the conclusion of each deliberation; however, they could not provide the specific dates or times of such deliberative meetings to the Commission, nor could they testify as to which appeals were discussed at such meetings.

17. It is found, however, that upon reaching a decision with respect to each appeal, the respondents entered a notation indicating the outcome of the appeal onto the listing of individual hearings described in paragraphs 3.c through 3.h, above. It is further found that the respondents sent notification of each decision by letter to each appellant, pursuant to §12-111, G.S.

18. The respondents contend that the decision meeting was a continuation of the deliberations noticed as described in paragraph 3.h, above, and that any failure to properly notice such meeting was technical in nature. It is found however, that the respondents neither filed notice of the decision meeting with the Portland Town Clerk, as required by required by §1-225(d), G.S., nor did they post a notice of adjournment or continuation of a special meeting, as required by §§1-228 and 1-229, G.S. Accordingly, it is concluded that the respondents violated the FOI Act, as alleged in paragraph 2.a, above.

19. With respect to the allegation as described in paragraphs 2.b and 2.c, above, §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,” and §1-225(a), G.S., provides in relevant part that: “…[t]he votes of each member of any…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.”

20. The respondents contend that the notations described in paragraph 17, above, in combination with the individual letters also described therein, serve as the record of votes and minutes with respect to each individual appeal, including the complainant’s, which is at issue herein. The respondents contend that the fact that each member of the respondent board signed the decision letter described in paragraph 6, above, indicates that the vote on the outcome of the complainant’s appeal was unanimous.

21. 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.

22. It is noted that the combination of the letter described in paragraph 6, above, and the notation regarding the complainant’s specific appeal, as described in paragraph 17, above, do not specify individual votes, nor do they constitute minutes in that they do not describe the date, time and place of the decision meeting, the names of the members who were present, and what business was transacted. For example, such records do not reveal whether the complainant’s appeal was the only one addressed at the decision meeting, or whether other appeals were also addressed.

23. Accordingly, it is concluded that the respondents violated the FOI Act, as alleged in paragraphs 2.b and 2.c, above.

24. At the hearing in this matter, the complainant asked the Commission to consider declaring the proceedings of the respondent board relative to his tax appeal null and void, although such request was not set forth in his letter of complaint. 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 board shall strictly comply with the provisions of §§1-225(d), 1-228 and 1-229, G.S., with respect to filing notice of its special meetings.

2. Henceforth, the respondent board shall likewise strictly comply with the provisions of §§1-210(a) and 1-225(a), with respect to minutes and votes.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 23, 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:

William S. Unikewicz

5 Allison Drive

Portland, CT 06480

Chairman, Board of Assessment

Appeals, Town of Portland; and

Board of Assessment Appeals,

Town of Portland

c/o Duncan Forsyth, Esq.

Halloran & Sage LLP

225 Asylum Street

Hartford, CT 06103

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-229/FD/paj/10/29/2002

[1] Note: parenthetical phrases are summaries of what appeared/did not appear on the actual notice.