FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on April 10, 2007, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the above-captioned matter was consolidated with Docket #FIC 2006-679, Gail Anne Shea v. Planning and Zoning Commission, Town of Stonington.

 

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 November 13, 2006 and filed on November 15, 2006, the complainant appealed to this commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.  discussing an item of business that was not properly noticed on the agenda for the respondent’s October 17, 2006 regular meeting;

 

b.  voting on one matter that was discussed under the item of business referenced in paragraph 2a, above; and

 

c.  conducting an unposted meeting through substantive email correspondence among its members.

 

3.  By letter dated November 18, 2006 and confirmed at the hearing on this matter, the complainant indicated that she wished to withdraw that portion of her complaint described in paragraph 2b., above, since the respondent had conducted another vote on such matter at a subsequent meeting of the respondent. 

4.  With respect to the claim that the respondent discussed an item of business that was not properly noticed on its agenda, as described in paragraph 2a, above, §1-225(c), G.S., provides in relevant part that:

 

the 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, in such agency’s regular office or place of business ….

 

5.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

6.  It is found that the respondent held a regular meeting on October 17, 2006 and that one item on the agenda for such meeting was entitled “correspondence.”

 

7.  It is also found that “correspondence” is a standard item of business that is always listed on the respondent’s agendas and that under such item the respondent might refer to letters it had received since the last meeting.

 

8.  It is further found that at its October 17, 2006 regular meeting, under “correspondence” the chairman of the respondent (“chairman”) brought up a letter and presentation the complainant had made at a September 27, 2006 Stonington Board of Selectmen meeting concerning problems with the manner in which the respondent conducted business.  It is found that both the complainant’s letter and presentation were directed to the board of selectmen, rather than the respondent.

 

9.  It is further found that the complainant was present at the respondent’s October 17, 2006 regular meeting, and that she and other members of the public were permitted to comment after the chairman spoke.

 

10.  It is further found that the respondent took a vote on one of the items raised in the complainant’s letter to the board of selectmen, which is the vote that was re-taken at a subsequent meeting of the respondent, as referenced in paragraph 3, above.

 

11.  At the hearing on this matter, the complainant claimed that the respondent should have voted to add discussion of her presentation to the board of selectmen to the agenda, rather than discuss it under the general heading of “correspondence” and that its failure to do so violated §1-225(c), G.S.   She also claimed that although she was permitted to comment during the meeting, had she known that her correspondence to the board of selectmen had been transmitted to the respondent and would be discussed, she would have prepared more thoroughly.  She further claimed that such discussion was not fair to members of the public who attended the respondent’s meeting for purpose of a public hearing that was scheduled to convene at 7:30 p.m., but due to the discussion actually convened at 9:05 p.m.

 

            12.  It is found that the discussion of the complainant’s letter to the board of selectmen was lengthy and did in fact significantly delay the start of the public hearing.

 

            13.  It is found that, based upon the respondent’s past practice, a member of the public would reasonably assume that the respondent would only generally discuss letters sent to it since the respondent’s prior meeting under “correspondence” and would not engage in a detailed discussion, and ultimately vote, concerning a matter brought to the attention of another public agency.

 

14.  It is further found that based upon the length of the discussion of this specific matter under the general agenda item of “correspondence” coupled with the fact that the respondent actually took a vote on one of the issues raised in the complainant’s letter to the board of selectmen, such item was substantive in nature and warranted a separate description on the respondent’s agenda, or the addition of such matter to its agenda, in accordance with the provisions of §1-225(c), G.S.   This conclusion is further bolstered by the fact that the respondent ultimately separately noticed such item specifically on a subsequent meeting agenda and took a second vote on the matter at such meeting.

 

15.  It is concluded therefore, under the facts and circumstances of this case, that the respondent’s agenda for its October 17, 2006 meeting did not fairly apprise the public of the business to be transacted and that the respondent violated the provisions of §1-225(c), G.S., as alleged in paragraph 2a, above. 

 

16.  With respect to the claim that members of the respondent exchanged substantive email correspondence, constituting an unnoticed meeting, as described in paragraph 2c, above §1-200(2), G.S., provides in relevant part 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, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.  “Meeting” does not include: … communication limited to notice of meetings of any public agency or the agendas thereof.

 

(Emphasis added).

 

17.  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. 

 

18.  It is found that the e-mail correspondence in this case, as described in paragraphs 19 through 22, below did not constitute a “hearing or proceeding” of the respondent; nor did it constitute the “convening or assembly of a quorum” of the respondent.  Therefore, the issue in this case is whether such correspondence constituted “communication by or to a quorum” of the respondent “to discuss or act upon a matter over which the respondent has supervision, control, jurisdiction or advisory power” within the meaning of §1-200(2), G.S.  

 

19.  It is found that an alternate member of the respondent received email correspondence from the respondent’s director of planning on October 20, 2006, regarding the Stonington Economic Development Commission’s (hereinafter “EDC”) comments on a submission to the respondent for consideration of a moratorium on commercial development along Rte. 1 within the town of Stonington.

 

20.  It is further found that after the alternate member of the respondent received the email described in paragraph 19, above, he emailed the chairman of the respondent concerning his thoughts about one of the points made by the EDC regarding such moratorium and e-mailed the same to two other members of the respondent from his political party, which communication occurred sometime between October 20 and October 21, 2006. 

 

21.  It is further found that the chairman of the respondent replied by email on October 21, 2006 to the alternate member’s email, with respect to such moratorium, emphasizing the urgency of acting on the moratorium issue, the need to lobby fellow board members and town leadership to act quickly, and stating that public statements about the issue would be premature.  It is further found that on October 23, 2006 the chairman of the respondent forwarded the email containing his statements regarding the moratorium to the alternate member, for a second time, as well as to the respondent’s director of planning and the other four regular members of the respondent. 

 

22.  The chairman testified at the hearing on this matter that no members of the respondent replied to his October 23, 2006 e-mail.

 

23.  The complainant claims that the e-mail exchange, starting with the alternate member of the respondent’s e-mail described in paragraph 20, above, constituted an illegal meeting, since the emails consisted of strategizing about substantive business before the respondent.

 

24.  It is found that the issue of the moratorium along Route 1 was clearly a matter over which the respondent had supervision, control, jurisdiction or advisory power within the meaning of §1-200(2), G.S.  However, it is also found, based upon the relatively low level and degree of communication that occurred in this case  (the fact that there was no give and take or back and forth exchanges between the various members of the respondent and that no members of the respondent replied to the chairman’s e-mail), that the e-mail exchange which occurred in this case did not constitute “discussion by or to a quorum” of the respondent within the meaning of §1-200(2), G.S.

 

25.  It is therefore concluded that although the respondent’s email communications can well be characterized as approaching the line at which a public meeting is triggered, such communications did not cross the line, and therefore did not constitute a “meeting” under §1-200(2), G.S.; consequently, it is further concluded that the respondent did not violate the FOI Act as alleged in paragraph 2c, above. 

 

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

 

            1.  With respect to the allegations as described in paragraph 2a of the findings, above, henceforth, the respondent shall strictly comply with the notice provisions of §1-225(c), G.S.

 

            2.  With respect to the allegations as described in paragraph 2c of the findings, above, the complaint is hereby dismissed. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 24, 2007.

 

 

________________________________

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:

 

Gail Anne Shea

197 River Road

Pawcatuck, CT 06379

           

Planning and Zoning Commission,

Town of Stonington

c/o Thomas J. Londregan, Esq.

Conway & Londregan

38 Huntington Street

New London, CT 06320

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2006-607FD/paj/11/1/2007