FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                          

The above-captioned matter was heard as a contested case on August 3, 2005, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  Contested case docket #FIC 2005-186, Michael Aurelia v. Victor Coudert, Jr., Chairman, Board of Ethics, Town of Greenwich; and Board of Ethics, Town of Greenwich, was consolidated with the above-captioned matter for purposes of hearing.  The Hearing Officer issued a report dated January 25, 2006, which report was withdrawn.  The Hearing Officer then issued a Revised Report dated March 2, 2006.      

           

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 March 24, 2005, and filed on March 28, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

i)                    failing to notify the complainant of the respondent board’s special meeting held on March 3, 2005;

ii)                   failing to file the record of votes of the March 3, 2005 meeting within forty-eight hours;

iii)                 failing to file draft minutes of the March 3, 2005 special meeting within seven days;

iv)                 failing to identify in the agenda the individuals who requested the advisory opinions dealt with at the March 3, 2005 special meeting;

v)                  failing to state the nature of the advisory opinion requests on the agenda for the March 3, 2005 special meeting; and

vi)                 continuing to hold secret meeting sessions in connection with discussing and rendering advisory opinions.

 

In his complaint, the complainant requested that all actions taken at the March 3, 2005 special meeting be declared null and void, that the Commission impose a civil penalty in this matter and that the respondent board be directed to pay for the expenses incurred by the complainant in filing this complaint.

 

3.  With respect to the allegation described in paragraph 2i, above, it is found that by letter dated September 17, 2004, the complainant requested that the respondent chairman provide him with “a timely notice (at least one week) by first class mail of every meeting or hearing you schedule for the board of ethics in 2004 and 2005”.

 

4.  It is found that, by letter dated October 1, 2004, the respondent chairman acknowledged receipt of the request, and informed the complainant that he would be provided with notice of the respondent board’s meetings and hearings.

 

5.  Section 1-227, G.S., provides, in relevant part:

 

The public agency shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting …Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed.  Renewal requests for notice shall be filed within thirty days after January first of each year.  Such public agency may establish a reasonable charge for sending such notice based on the estimated cost of providing such service. 

6.  It is found that the respondent held a special meeting on March 3, 2005, and did not provide the complainant with notice of such meeting.

7.  It is found that the respondent chairman’s explanation for the failure to provide the complainant with the requested notice is that it was due to an oversight.

 8.  It appears however, that the respondent chairman’s failure to provide the complainant with notice of the March 3, 2005 meeting was not unintentional.

9.  It is concluded that the respondent chairman violated §1-227, G.S., when he failed to provide the complainant with notice of the March 3, 2005 meeting.

10. With respect to the allegation described in paragraph 2ii, above, it is found that the respondent chairman faxed a copy of the votes of the March 3, 2005 meeting to the First Selectman’s office on March 7, 2005.

11.  It is found that on March 8, 2005, the complainant visited the First Selectman’s office and requested the votes.  It is found that the assistant to the First Selectman searched but could not locate the votes.  It is also found that the complainant asked the town clerk for the votes and she too could not locate them.

12.  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.  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.  [Emphasis added].

13.  Section 1-225(g), G.S., further 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. 

14.  It is found that the March 3, 2005 meeting was a special meeting within the meaning of §1-225(g), G.S.  Consequently, it is found that the votes were prepared within forty-eight hours of the March 3, 2005 meeting, excluding Saturday March 5 and Sunday March 6, 2005.

15.  It is concluded however, that the votes were not “available for public inspection”, within the meaning of §1-225(a), G.S., on March 8, 2005, when the complainant requested them, and therefore the respondent chairman violated §1-225(a), G.S. 

16.  It is found that the issue of where the respondent board’s records are to be maintained was previously addressed in contested case docket #FIC 2004-408, supra.  The Commission takes administrative notice of its Order in FIC 2004-408, which indicated, in relevant part:

2.  Forthwith, the respondents shall arrange to have all of the [respondent] BOE’s records stored at the town clerk’s office, in accordance with §1-210(a), G.S.

17. With respect to the allegation described in paragraph 2iii, above, it is found that by letter dated March 22, 2005, the complainant requested that the respondent provide him with a copy of the March 3, 2005 meeting minutes.

18.  It is found that the chairman of the respondent filed the minutes of the March 3, 2005 meeting on March 23, 2005.

19.  It is concluded that the minutes at issue were not filed, and therefore were not available, within seven days of the March 3, 2005 meeting, and therefore, the respondent chairman violated §1-225(a), G.S.

20.  With respect to the allegations described in paragraph 2iv and v, above, §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 notice shall specify the time and place of the special meeting and the business to be transacted. 

21.  It is found that the respondent timely filed a notice of the March 3, 2005 special meeting with the town clerk, which notice, in relevant part, states:

“Executive Session

To receive and take action on two (2) requests for Advisory Opinions.”

22.  The complainant contends that the respondents’ failure to identify in the notice the individuals requesting the advisory opinions, and the “nature” of the advisory opinion requests, violated the FOI Act.  

23.  It is concluded, however, that it is not the failure of the respondents to identify in the notice the individuals who requested the advisory opinions, and the “nature” of the advisory opinion requests that is problematic.  It is the fact that the respondents conducted all of the business concerning such requests for advisory opinions in an executive session, and not during the open portion of the March 3, 2005.  It is therefore concluded that by conducting such business behind closed doors the respondents violated the open meetings provisions of the FOI Act.

24.  Section 1-206(b)(2), G.S., provides, in relevant part: “[T]he commission may declare null and void any action taken at any meeting which a person was denied the right to attend ….”            

25.  However, the Commission takes administrative notice of the fact that the Final Decision in FIC 2004-408, which addressed many of the issues raised herein concerning advisory opinion requests being addressed by the respondents in secret, was issued by the Commission on May 17, 2005, after the complainant had already filed the instant appeal.

26.  Therefore, the Commission in its discretion declines to declare null and void any action taken at the respondent board’s March 3, 2005 meeting. 

27.  However, with respect to the violation described in paragraph 9, of the findings, above, it is concluded that such violation was without reasonable grounds.

28.  With respect to the allegation described in paragraph 2vi, it is found that the complainant did not provide any evidence of meetings, other than the March 3, 2005 meeting, at which the respondents addressed requests for advisory opinions in secret.  

29.  Consequently, it is concluded that the respondents did not violate the FOI Act as alleged in paragraph 2vi, above.

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 provisions of §§1-225 and 1-227, G.S.

2.  Forthwith, the respondent Victor Coudert, Jr., as the official directly responsible for the violation described in paragraphs 9 and 27 of the findings, above, shall remit a civil penalty in the amount of $200.00 to the Commission. 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 8, 2006.

 

________________________________

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:

 

Michael Aurelia

72 Oak Ridge Street

Greenwich, CT 06830

 

Victor Coudert, Jr., Chairman, Board

of Ethics, Town of Greenwich; and

Board of Ethics, Town of Greenwich

c/o Abby Wadler, Esq.

Assistant Town Attorney

PO Box 2540

101 Field Point Road

Greenwich, CT 06836-2540

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-143FD/paj/3/14/2006