FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on June 2, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The matter was consolidated for hearing with docket #FIC 2004-154, Forest Walk LLC v. Water Pollution Control Authority, Town of Middlebury.

 

            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 and filed December 18, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by taking up new business at its November 18, 2003 meeting without adding that new business to the agenda, and requesting that the action taken at the meeting be declared null and void.

 

3.  It is found that the respondent held a regular meeting on November 18, 2003.

 

4.  It is found that, at the November 18, 2003 regular meeting, the respondent moved and unanimously voted to add discussion of Public Act 03-177, to consider revision of the respondent’s regulations in light of the new public act, and to consider a moratorium on applications while new regulations were being considered and revised.

 

5.  It is found that, after discussion, the respondent voted to approve a four-month moratorium for applications for hook-up, extensions or connections to the sewer system until the March 16, 2004 regular meeting of the respondent, in order to prepare appropriate regulations, application forms, decision procedures, and standards to conform to the requirements of Public Act 03-177.

 

6.  The complainant maintains, as a factual matter, that the motion to add new business to the agenda was limited to discussion of Public Act 03-177, because the minutes of the meeting so recite, and that the respondent therefore improperly discussed and acted on the imposition of a moratorium on applications.

 

7.  Section 1-225(c), G.S., provides in relevant part:

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business ….  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.

 

8.  It is found that the actual motion to add new business that was made at the meeting is the motion described in paragraph 4 of the findings, above, not the more restrictive motion recited in the minutes of the meeting.  In reaching this finding of fact, the Commission credits the testimony of the chairman of the respondent, who requested the motion at the meeting after consultation with counsel.  The respondent’s usual recording clerk was not present at the November 18, 2003 meeting, and the acting recording clerk at the meeting had never prepared the minutes before.

 

9.  The complainant argues that the respondent must not be permitted to “subsequently alter the plain text of the minutes that it unanimously approved and recorded with the town clerk of Middlebury, and that the minutes themselves constitute competent evidence of the facts contained therein.”

 

10.  It is concluded that while the minutes are competent evidence of the facts contained therein, they are not the only, or irrebuttable, evidence of those facts.

 

11.  The complainant further argues that Plainfield v. FOIC, 66 Conn. App. 279 (2001) is controlling, and requires the language of §1-225(c) to be strictly construed.  

 

12.  However, as the complainant concedes in its brief, the sole issue on appeal in Plainfield, supra, was “whether a two-thirds vote on the merits of a new agenda item comports with the requirements of §1-21(a) [now §1-225(a)] where there was no prior vote on whether to add the item to the agenda.”  Plainfield, supra at 279 [emphasis added].  In the current case, there is no issue of whether there was a prior vote to add the item to the agenda.  There clearly was a prior vote, and the true issue is one of pure fact:  what that prior vote actually was.

 

13.  It is concluded that the respondent did not violate §1-225(c), G.S., when it voted to impose a moratorium on sewer applications after first unanimously voting to add new business to its agenda as described in paragraph 4 of the findings, above.

 

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

 

            1.  The complaint is dismissed

 

            2.  It is recommended that the respondent correct the minutes of its November 18, 2003 meeting.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2004.

 

________________________________

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:

 

                    Forest Walk LLC

c/o Julia B. Morris, Esq.

O’Connell, Flaherty & Attmore, L.L.C.

280 Trumbull Street

Hartford, CT 06103-3598

 

Water Pollution Control Authority,

Town of Middlebury

c/o Jennifer Sills Yoxall, Esq.

50 Leavenworth Street

PO Box 1110

Waterbury, CT 06721-1110

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2003-457FD/paj/10/15/2004