FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on February 6, 2004, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

            2.  By letter of complaint dated August 7, 2003, and filed with this Commission on August 12, 2003, the complainant (a member of the respondent commission) appealed, alleging that the respondents committed several violations of the Freedom of Information (“FOI”) Act.  However, at the hearing in this matter, the complainant withdrew portions of his complaint and limited his appeal to the following two allegations:

 

a)                          that the respondent chairman and the respondent Ashburn and other unnamed members of the respondent commission held a meeting in private and discussed contract terms for a contract with the Maguire Group Inc. (“Maguire”) without giving notice, and an opportunity to attend such meeting, to the public and other members of the respondent commission; and

b)                          that the respondent commission discussed and voted upon an item not included on the respondent  commission’s July 22, 2003 meeting agenda.

 

In his letter of complaint the complainant requested that all motions made at the July 22, 2003 meeting be declared null and void and also that a civil penalty be imposed upon the respondents.  However, at the hearing in this matter, the complainant withdrew such requests.

 

            3.  With respect to the allegation described in paragraph 2a, above, it is found that soon after the respondent commission’s May 27, 2003 regular meeting, the respondent commission retained the engineering services of Maguire in connection with certain water supply issues being faced by the town.

 

            4.  It is found that the respondent commission thereafter held a special meeting on June 10, 2003, which representatives of Maguire attended, and during which the respondent commission received a proposed draft contract from Maguire in connection with the services to be performed.

 

            5.  It is found that sometime after the June 10, 2003 special meeting but prior to the respondent commission’s July 22, 2003 regular meeting, the respondent chairman met informally with the town’s Public Works Director and with respondent Ashburn.  It is found that the three of them reviewed the proposed contract with a view to identifying any discrepancies and ensuring that the proposed terms were in keeping with those addressed at the June 10, 2003 special meeting.

 

            6.  It is found that after the review, the three then drafted a formal amendment to the proposed contract, which draft was ultimately presented to the respondent commission at its July 22, 2003 regular meeting.   

 

7.  The complainant contends that the meeting attended by the respondents chairman and Ashburn, and the Public Works Director, described in paragraphs 5 and 6 above, should have been publicly noticed and open to the public.

 

8.  Section 1-225(a), G.S., in relevant part, provides, 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.”

 

9.  Section 1-200(2), G.S., further provides 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 … to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.” 

 

10.  With respect to the meeting and discussions among the respondents chairman and Ashburn, and the Public Works Director, described in paragraphs 5 and 6 above, it is found that such meeting and discussions concern substantive issues over which the respondent commission has supervision, control, jurisdiction or advisory power and do not fall within any of the exclusions to the  “meeting” definition as set forth in §1-200(2), G.S.

 

11.   It is also found that such meeting and discussions constituted an integral step in bringing the drafting of a proposed contract with Maguire to conclusion.

 

12.  It is further found, however, that there is insufficient evidence to conclude that the meeting, attended by less than a quorum of the respondent commission, was authorized either explicitly or implicitly by the respondent commission.

 

13.  It is therefore, concluded that the meeting and discussions did not constitute a “meeting,” as defined in §1-200(2). G.S., and consequently, the respondents chairman and Ashburn did not violate §1-225(a), G.S., as alleged in paragraph 2a, above, when less than a quorum of the respondents’ members privately discussed substantive issues concerning the proposed contract with the Public Works Director.

            14.  With respect to the allegation described in paragraph 2b, above, it is found that at the respondent commission’s July 22, 2003 regular meeting, the respondent chairman, while presenting the “Chairman’s Report”, mentioned a water/irrigation issue which was not specifically noticed on the agenda.  It is found that the water/irrigation issue was further discussed by the members of the respondent commission and ultimately such commission voted to “contribute $10,000 to the drilling of the new well to be used for irrigation of the playing fields at Bride Brook.” 

            15.  The complainant contends that the water/irrigation issue described in paragraph 14 above, was not an agenda item and therefore should not have been discussed and acted upon.

            16.  Section 1-225(c), G.S., provides, in relevant part: “[T]he agenda of the regular meetings of every public agency … shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer …Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.”

            17.  It is found that the respondent commission could have properly addressed the water/irrigation issue described in paragraph 14 above, if such commission had received a two-thirds vote of its members present and voting, to add such item to the July 22, 2003 agenda.

            18.  It is found that the respondent commission did not add the water/irrigation issue described in paragraph 14, above, to the meeting agenda in accordance with §1-225(c), G.S., and therefore, violated such provision, as alleged in paragraph 2b, above.

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

 

 

1.  Henceforth, the respondent commission shall strictly comply with the provisions of §1-225(c), G.S.                                      

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 2004.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Joseph J. Mingo

397 Boston Post Road

East Lyme, CT  06333

 

Wayne Fraser, Chairman, Water and Sewer Commission,

Town of East Lyme; Charles P. Ashburn, Member,

Water and Sewer Commission, Town of East Lyme;

and Water and Sewer Commission, Town of East Lyme

c/o Edward B. O’Connell, Esq.

Waller, Smith & Palmer, PC

52 Eugene O’Neill Drive

PO Box 88

New London, CT  06320

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-280/FD/abg/04/29/2004