FIC2002-359

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Bruce Joslyn,
		Complainants
	against		Docket #FIC 2002-359
First Selectman, Town of Madison; and Board of Selectmen, Town of Madison,
		Respondents	November 13, 2002

The above-captioned matter was heard as a contested case on September 19, 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 August 8, 2002, and filed with the Commission on August 9, 2002, the complainant alleged that the respondents violated the Freedom of Information (“FOI”) Act by failing to provide notice and minutes of a July 31, 2002 “official meeting” of the respondent board. The complainant requested that the Commission declare null and void all actions and decisions taken at such alleged meeting and that the Commission “invalidate” the entire resolution process described in paragraphs 7 through 15, below.

3. Section 1-200(2), 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….”

4. Section 1-225(a), G.S., in relevant part provides that:

“[t]he meetings of all public agencies…shall be open to the public. 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….”

5. Section 1-225(d), G.S., provides in relevant part:

“[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 notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency….

6. It is found that the complainant is affiliated with a group of citizens in Madison called Save Bauer Farm [hereinafter “SBF”]. It is found that, on July 1, 2002, SBF submitted a petition to the respondents calling for a town meeting to adopt a resolution regarding use of town owned property known as Bauer Farm [hereinafter “the petition”]. It is also found that, at the following meeting of the respondent board, the board referred the petition to the Madison town attorney. It is found that SBF sought by its petition to resolve the use of Bauer Farm through a vote at a town meeting.

7. It is found that, at the July 22, 2002, meeting of the respondent board, the board voted to accept a report from the town attorney regarding the petition, by which the town attorney opined that the stated purpose of the petition was not a proper subject for a town meeting. It is further found that one selectman then asked the town attorney to draft a resolution relative to Bauer Farm, with the intention to convene a town meeting before the end of August and adjourn to a November election vote by machine.

8. It is found that, subsequent to the July 22, 2002, meeting described in paragraph 7, above, the respondent first selectmen sought to prepare the issue of Bauer Farm for a subsequent meeting of the respondent board, and included all interested parties in a working group to discuss the language of a Bauer Farm resolution and the logistics of adding such a resolution as a referendum to the November ballot. It is found that such gathering was held on July 31, 2002 in the first selectman’s office. It is also found that the respondent first selectman invited the following individuals to attend such meeting: the complainant, as a member of SBF, the republican and democratic voter registrars, the town finance chairman, who is also a past selectman with expertise in the town charter, the chairman of the Republican town committee, the head of the Public Works Department, with knowledge of the Bauer Farm property, the town attorney, and another selectman, Charles Walz. It is found that the respondents did not provide notice of such gathering, within the meaning of §1-225(d), G.S.

9. It is found that, as the gathering described in paragraph 8, above, began, another selectman, Jerry Kleutch that happened to be in town hall, joined the group and participated in the gathering.

10. It is found that there are five members of the respondent board and that three members constitute a quorum.

11. It is concluded that the gathering described in paragraphs 8 and 9, above, constituted a convening or assembly of a quorum of the respondent board to discuss or act upon a matter over which such board had supervision, control, jurisdiction or advisory power, within the meaning of §1-200(2), G.S. It is therefore concluded that the respondents violated §1-225(d), G.S., by failing to provide the notice of the July 31, 2002 special meeting, as alleged in the complaint.

12. It is also found that, at the July 31, 2002, meeting, described in paragraph 11, above, the group came to a consensus on approximate language for a proposed resolution regarding uses of Bauer Farm, and discussed the logistics of the voting issue in the upcoming election. It is also found that the three members of the respondent board in attendance did not vote on any matter at such meeting.

13. It is also found that the respondents held a special meeting on August 6, 2002, at which the respondents voted to call a special town meeting on August 28, 2002 for the purpose of addressing the resolution discussed in paragraph 12, above. It is further found that the respondents then voted to remove such resolution for a referendum vote at the November election, pursuant to §7-7, G.S. It is found that such a procedure differs from that sought by SBF, in that such group seeks to decide the matter at a town meeting, rather than an election.

14. It is also found that the respondents held a meeting on August 12, 2002, and that at such meeting, the respondent first selectman informed the public of the July 31, 2002 meeting described in paragraphs 8, 9, 11, and 12, above, including those in attendance, and what was discussed. It is further found that such comments were included as an addendum to the minutes of the August 12, 2002, meeting of the respondent board. It is found that such addendum suffices as the minutes of the July 31, 2002 meeting of the respondent board. However, it is also found that such minutes were not available for public inspection within seven days after such meeting, within the meaning of §1-225(a), G.S. Accordingly, it is concluded that the respondents violated §1-225(a), G.S., by failing to make the minutes of the July 31, 2002, meeting available in a timely manner.

15. It is also found that a special town meeting was held on August 28, 2002, during which the moderator called the resolution described in paragraph 13, above, and then informed the meeting that the resolution had been removed for a referendum vote on November 5, 2002, by the respondents at the August 6, 2002, meeting of the respondent board. It is further found that the public, including the complainant, then discussed the resolution and Bauer Farm at such town meeting.

16. At the hearing in this matter, the respondent first selectman acknowledged his error in failing to stop the July 31, 2002 meeting described in paragraphs 8, 9, 11, and 12, above, when it became apparent that a quorum of the respondent board was present.

17. The Commission declines to issue a null and void remedy under the facts and circumstances of this case.

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

Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 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:

Bruce Joslyn

16 Brookview Terrace

Madison, CT 06443

First Selectman, Town of Madison; and

Board of Selectmen, Town of Madison

c/o Margot Kenefick Burkle, Esq.

246 Goose Lane, Suite 201

Guilford, CT 06437

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-359/FD/paj/11/20/2002