FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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Keith Fontaine and
Norwich Bulletin, |
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Complainants
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against
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Docket
#FIC 2001-458 |
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City Council,
City of Norwich, |
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Respondent
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March
13, 2002 |
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The
above-captioned matter was heard as a contested case on October 30, 2001, at
which time the complainants 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 of complaint dated
October 2, 2001, and filed with the Commission on October 4, 2001, the
complainants appealed to the Commission, alleging that the respondent violated
the Freedom of Information [hereinafter “FOI”] Act on October 1, 2001 by:
a) meeting in executive session with a
developer of city-owned property regarding release of city funds for
repair work on such property;
b) meeting in executive session with a
developer regarding such developer’s request to be named preferred
developer on another city owned building; and
c) meeting with representatives of the city’s
minor league baseball team, the Norwich Navigators, without notifying the
public of the reason for such meeting.
3. 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.”
4. Section 1-200(6), G.S., defines executive sessions to mean:
… a meeting of a public agency at which the
public is excluded for one or more of the following purposes: (A) Discussion
concerning the appointment, employment, performance, evaluation, health or
dismissal of a public officer or employee, provided that such individual
may require that discussion be held at an open meeting;
(B) strategy and
negotiations with respect to pending claims or pending litigation to which
the public agency or a member thereof, because of the member’s conduct
as a member of such agency, is a party until such litigation or claim has
been finally adjudicated or otherwise settled;
(C) matters concerning
security strategy or the deployment of security personnel, or devices
affecting public security; (D)
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; and
(E) discussion of any matter which would result in the disclosure
of public records or the information contained therein described in
subsection (b) of section 1-210.
5. Section 1-225(f), G.S.,
provides:
[a] public agency may hold
an executive session as defined in subdivision (6) of section 1-200, upon
an affirmative vote of two-thirds of the members of such body present and
voting, taken at a public meeting and stating the reasons for such
executive session, as defined in section 1-200.
6. It is found that the
respondent held a regular meeting on October 1, 2001, and that the agenda for
such meeting listed the following item:
Executive Session:
Contract Negotiation/Property Acquisition
Contract Negotiations.
7. It is further found that,
during such meeting, the members of the respondent voted by two-thirds
majority to enter executive session, for the stated purposes of discussing
contract negotiations with Becker and Becker, discussing contract negotiations
with the city’s personnel director on resolution number five, discussing
property acquisition with individuals who want to develop the “Reid &
Hughes”, and discussing a contract with the Navigators.
8. With respect to the complaint
as described in paragraph 2.a, above, it is found that during the executive
session, the respondent discussed an invoice and contract dispute with Becker
and Becker, the preferred developer of the city-owned Wauregan Hotel.
The respondent contends that such discussion was appropriate in that it
was intended to avoid the possibility of legal action.
9. Section 1-200(8), G.S., defines “pending claim” to mean
“a written notice to an agency which sets forth a demand for legal relief or
which asserts a legal right stating the intention to institute an action in an
appropriate forum if such relief or right is not granted.”
Section 1-200(9), G.S., defines “pending litigation” to mean “…
a written notice to an agency which sets forth a demand for legal relief or
which asserts a legal right stating the intention to institute an action
before a court if such relief or right is not granted by the agency; …the
service of a complaint against an agency returnable to a court which seeks to
enforce or implement legal relief or a legal right; or…the agency's
consideration of action to enforce or implement legal relief or a legal right.
10. It is found that there
was no pending claim or pending litigation at issue in the discussion
described in paragraph 8, above. Therefore,
it is concluded that such discussion was not permitted by §1-200(6)(B),
G.S., and that the respondent violated §1-225(a),
G.S., when it discussed the invoice and contract issues with Becker and
Becker.
11. With respect to the complaint
as described in paragraph 2.b, above, it is found that during the executive
session, the respondent heard a presentation of a prospective developer who
wished to develop the city-owned Reid and Hughes building, whereby if all
conditions were met, such developer would receive title to such property. The
respondent contends that such discussion was appropriate in that it
constituted a 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, within the meaning of §1-200(6)(D),
G.S.
12. However, it is found that the discussion described in
paragraph 11, above, was preliminary in nature.
It is also found that respondent failed to prove that a “lease, sale,
or purchase of real estate” was pending at such time and further failed to
prove that publicity would cause a likelihood of increased price, within the
meaning §1-200(6)(D),
G.S. Therefore, it is concluded that such discussion was not permitted by §1-200(6)(D),
G.S., and that the respondent violated §1-225(a),
G.S., when it met with such developer in executive session.
13. With respect to the complaint as described in paragraph 2.c,
above, it is found that during the executive session, the respondent discussed
with representatives of the Norwich Navigators baseball team an existing
lease, which the Navigators held on the city-owned Dodd stadium.
It is further found that such discussion included possible
modifications to the lease.
14. It is found that the discussion described in paragraph 13,
above, was not permitted by any provision of §1-200(6),
G.S. It is therefore concluded
that the respondent violated §1-225(a),
G.S., when it met with the Navigators representatives in executive session.
15. It is also found that the respondent did not adequately state
the statutory reasons for entering executive session during the vote described
in paragraph 7, above. Accordingly,
it is concluded that the respondent violated §1-225(f),
G.S., as alleged in the complaint.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1.
Forthwith, the respondent shall strictly comply with the executive
session and open meeting provisions of the FOI Act.
2.
The Commission believes that an FOI workshop conducted by an FOI staff
member may be helpful to the respondent.
Accordingly, such a workshop is recommended.
Approved by Order of the Freedom of Information
Commission at its regular meeting of March 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:
City Council, City of Norwich
c/o Ralph Bergman, Esq.
60 Chelsea Harbor Drive
Norwich, CT 06360
and
c/o Michael E. Driscoll, Esq.
Brown Jacobson, P.C.
22 Courthouse Square
PO Box 391
Norwich, CT 06360-0391
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-458/FD/paj/3/15/2002