FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 24, 2005, at which time the complainants 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 of complaint filed November 10, 2004, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

(a)          Conducting a special meeting on October 12, 2004 without the requisite 24-hour notice;

(b)         Conducting an impermissible executive session at their October 12, 2004 meeting;

(c)          Impermissibly putting “Any Appropriate Business” on the agenda for their October 12, 2004 meeting;

(d)         Conducting an impermissible executive session at their October 13, 2004 meeting, and proceeding with business at the meeting under an impermissibly vague agenda item;

(e)          Conducting an impermissible executive session at their October 21, 2004 meeting; and

(f)           Failing to provide the complainants with the agenda for the November 4, 2004 meeting, notwithstanding the complainants’ standing request.

 

3.  The complainants also requested that the actions taken by the respondents at the meetings referenced in paragraph 2 of the findings, above, be declared null and void, and that civil penalties be assessed against the individual respondents.

 

4.  It is found that the respondent Board of Selectmen held a special meeting at 8:30 a.m. on Tuesday, October 12, 2004.

 

5.  It is found that the notice for this special meeting was filed with, and posted by, the town clerk at approximately 12:45 p.m. on Friday, October 8, 2004.

 

6.  It is found that the town hall, including the town clerk’s office and the respondents’ office, closed at 1:00 p.m. on Friday, October 8, 2004.

 

7.  It is found that Monday, October 11, 2004 was Columbus day, a day on which the offices of the respondents and the town clerk were closed.

 

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

 

Notice 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. 

 

9.  Section 1-225(g), G.S., provides:

 

In determining the time within which or by when a notice, agenda, record of votes or minutes of a special meeting or an emergency special meeting are required to be filed under this section, Saturdays, Sundays, legal holidays and any day on which the office of the agency, the Secretary of the State or the clerk of the applicable political subdivision or the clerk of each municipal member of any multitown district or agency, as the case may be, is closed, shall be excluded.

 

10.  It is found that, excluding Saturday, October 9, Sunday, October 10, and Monday, October 11, all days on which the offices of the respondents and the town clerk were closed, the notice of the 8:30 a.m. Tuesday, October 12 meeting was filed less than 24 hours before that meeting.  It is also found that the closing of the respondents’ and the town clerk’s offices at 1:00 p.m. on Friday, October 8 does not affect this finding; that is, even if the hours between 1:00 p.m. and the ordinary close of business on Friday, October 8 are included in determining the time within which the notice must be filed pursuant to §1-225(g), G.S., the notice was still filed less than 24 hours before 8:30 a.m. on Monday, October 11, 2004.

 

11.  It is also found that notice of the Tuesday, October 12, 2004 meeting was emailed to reporters on Friday October 8, 2004, and that three reporters and one member of the general public were present at the Tuesday, October 12 meeting.

 

12.  It is also found that the 8:30 a.m. time was not selected to evade attendance by the public, but because a certain grant application needed to be signed by the Town Manager by noon on October 12, a Town Manager needed to be appointed by the respondents in order to sign the application, and 8:30 a.m. was the only time the respondents were available to meet that day to appoint the Town Manager.

 

13.  It is nonetheless concluded that the respondents violated §1-225(d), G.S., by failing to file notice of their Tuesday, October 12, 2004 meeting at least 24 hours before the meeting.

 

14.  With respect to the allegation of an impermissible executive session at the October 12, 2004 meeting, it is found that the respondents convened in executive session for the purposes, stated on the notice of the meeting, of “Land Issue” and “Personnel Matters.”

 

15.  It is found that the respondents in executive session discussed the hiring and appointment of three individuals, and whether to sell certain property that the town had purchased.

 

16.  It is found that, immediately following the executive session, the respondents in public session voted to hire a part-time police officer, to appoint a Revenue Collector, and to appoint a Town Manager.

 

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

 

The notice [of any special meeting] 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. 

 

18.  Section 1-225(a), G.S., provides in relevant part: “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

19.  Section 1-200(6), G.S., provides in relevant part:

 

“Executive sessions” means 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;  …  (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 ….

 

20.  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.

 

21.  It is concluded that the respondents permissibly discussed the hiring and appointment of the three individuals during the executive session, pursuant to §1-200(6)(A), G.S.

 

22.  It is also found, however, that the respondents offered no evidence to prove that publicity regarding the sale of real estate would cause a likelihood of increased price to the town.

 

23.  It is therefore concluded that the respondents violated §1-225(a), G.S., by discussing the sale of town property in executive session.

 

24.  It is also found that the portion of the notice of the October 12, 2004 meeting that listed “Land Issue” and “Personnel Matters” failed to adequately apprise the public of the business to be discussed.

 

25.  It is therefore concluded that the respondents violated §1-225(d), G.S., by failing adequately to describe the business to be discussed under the general items “Land Issue” and “Personnel Matters.”

 

26.  With respect to the allegation that the respondents impermissibly put the item “Any Appropriate Business” on their October 12, 2004 notice of meeting, it is found that the respondents did not discuss or act on any business under this item.

 

27.  It is therefore concluded that the respondents did not violate the FOI Act by putting the item “Any Appropriate Business” on their October 12, 2004 notice of meeting, without taking up any business under that item.

 

28.  With respect to the allegation that the respondents impermissibly conducted an executive session at their October 13, 2004 meeting, and proceeded with business at the meeting under an impermissibly vague agenda item, it is found that the respondents at that meeting discussed in executive session the hiring of a town manager under the agenda item “Matter appropriate for Executive Session” and “Personnel Matter.”

 

29.  It is concluded that the respondents did not violate §1-225(a), G.S., by discussing the hiring of a town manager in executive session.

 

30.  It is also found, however, the portion of the notice of the October 13, 2004 meeting that listed “Matter Appropriate for Executive Session” and “Personnel Matter” failed to adequately apprise the public of the business to be discussed.

 

31.  It is therefore concluded that the respondents violated §1-225(d), G.S., by failing adequately to describe the business to be discussed under the general items “Matter Appropriate for Executive Session” and “Personnel Matter.”

 

32.  With respect to the allegation that the respondents conducted an impermissible executive session at their October 21, 2004 meeting, it is found that the respondents at that meeting discussed in executive session the Tax Assessor’s accumulated vacation time, under the agenda item, and for the stated purpose of, “Personnel Matters.”

 

33.  It is concluded that the respondents did not violate §1-225(a), G.S., by discussing the accumulation of vacation time by the Tax Assessor in executive session.  See Docket #FIC 90-265, Lawrence A. Ouellette, Jr. And Frank A. Loda v. Seymour Board of Selectmen et al. (holding that discussion of employee’s accrued vacation time was discussion of his “employment” within the meaning of §1-18a(e)(1), G.S. [now §1-200(6)(A), G.S.]

 

34.  It is also concluded, however, that the respondents violated §1-225(a), G.S., by failing to adequately apprise the public of the business to be transacted under the item “Personnel Matters.”

 

35.  It is also found that the respondents at their October 21, 2004 meeting also reviewed in executive session the application, including the personal finances, of an applicant for a housing rehabilitation grant under the agenda item, and for the stated purpose of, “Housing Rehabilitation Issue.”

 

36.  It is concluded that the respondents violated §1-225(a) by failing to state a permissible reason for the portion of their executive session in which they discussed the “Housing Rehabilitation Issue.”

 

37.  It is also found that the respondents failed to prove that the discussion of the “Housing Rehabilitation Issue” fell within any of the permitted purposes for an executive session described in §1-200(5), G.S.

 

38.  It is therefore concluded that the respondents violated §1-225(a) by discussing the “Housing Rehabilitation Issue” in executive session.

 

39.  At the hearing, the complainants withdrew their allegation with respect to the respondents’ November 4, 2004 meeting.

 

40.  It is found that the respondents, subsequent to the filing of the complaint in this matter, arranged for an educational workshop on the requirements of the FOI Act, at which at least one representative from every town board and commission attended.

 

41.  It is also found that the respondents, subsequent to the filing of the complaint in this matter, obtained a written legal opinion on the requirements of the FOI Act with respect to specificity in setting out agenda items and for convening into executive session, and have sought to comply with that opinion.

 

42.  The Commission in its discretion declines to declare any actions of the respondents null and void, or to impose civil penalties against the respondents.

 

 

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

 

1.  Henceforth the respondents shall strictly comply with the requirements of §§1-225(a), 1-255(d), 1-225(f), 1-225(g) and 1-200(6), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 26, 2005.

 

________________________________

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:

 

Maria McKeon

117 Senate Brook Drive

Amston, CT 06231

 

Faith Dorman

86 Stonehouse Road

Amston, CT 06231

 

Victoria Avelis, Chairman, Board of Selectmen,

Town of Hebron; Bill Cox, Karen Strid,

Catherine Marx and Scott Kaufman,

as members, Board of Selectmen,

Town of Hebron; and Board of Selectmen,

Town of Hebron

c/o Donald R. Holtman, Esq.

Katz & Seligman

130 Washington Street

Hartford, CT 06106

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-509FD/paj/10/28/2005