FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 26, 2006, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.    

 

            On December 12, 2006 the respondents appealed the Commission’s final decision dated November 8, 2006, to the Superior Court.

 

            After a hearing in the matter, the Court, Cohn, J., remanded the case to the Commission for clarification and articulation of its final decision with respect to the imposition of civil penalties against three named respondents.  The court retained jurisdiction over the appeal.

 

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 December 13, 2005, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act at their November 15, 2005 meeting by taking up the issue of a raise for the respondent First Selectman without first putting the issue on their agenda.  The complainant requested that the action taken by the respondents to raise the First Selectman’s salary be declared null and void, and that a civil penalty be assessed against the respondents.

 

3.  It is found that the respondents held a regular meeting on November 15, 2005.

 

4.  It is found that the agenda for the meeting listed the item “First Selectman’s Position” without elaboration.

 

5.  It is found that the agenda was prepared by the respondent First Selectman.

 

6.  It is found that the item was placed on the agenda by the First Selectman at the request of the respondent Selectman Rosebrock.

 

7.  It is found that, at the November 15, 2005 meeting, Selectman Rosebrock proposed a 3% salary increase for the First Selectman beginning on July 1, 2007.  The motion carried by a vote of five to one, with the First Selectman excusing himself from the discussion and the vote on the motion.

 

8.  The complainant contends that the item “First Selectman’s Position” did not reasonably apprise the public that the respondents would consider and approve a raise for the First Selectman, thus violating §1-225(c), G.S.  Specifically, the complainant contends that there was no way of knowing from the agenda item what aspect of the First Selectman’s position would be discussed, and that nothing in the item mentions his salary.

 

9.  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.

 

10.  In Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public what business would be transacted.

 

11.  In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.

12.  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.”

 

13.  It is found that the First Selectman is an “interested party” in matters pertaining to his salary.

 

14.  However, the respondent First Selectman testified at the hearing on this matter that, at the time the respondent Selectman Rosebrock requested that the item “First Selectman’s Position” be placed on the agenda, the First Selectman himself did not understand the agenda item to mean that Rosebrock would be proposing a raise in the First Selectman’s salary.

 

15.  If the respondent First Selectman’s testimony is to be credited, then even the author of the agenda, who was also the subject of the agenda item, did not know substance of the business to be taken up under the item “First Selectman’s Position.”

 

16.  It is also found, however, that at some point prior to the time that the Board of Selectman voted to increase the First Selectman’s salary, the First Selectman learned that the agenda item “First Selectman’s Position” meant that the Board of Selectmen intended to discuss and vote on a pay raise for himself.  It is further found that the First Selectman did not make any attempt to postpone the discussion and vote of such pay raise, once he learned of it.

 

17.  It is also found that Selectman Jeanne Loda, who is not a respondent in this matter, did not understand from the agenda what business would be discussed regarding the “First Selectman’s Position,” and raised the issue of the vagueness of the agenda item at the November 15, 2005 meeting.

 

18.  With regard to the potential public interest in the subject of the First Selectman’s salary, it is found that the issue of a raise for the First Selectman previously had gone to a town meeting and referendum, that between 800 and 1,000 people attended the town meeting, and 300 signed a petition concerning the issue. 

 

19.  It is therefore found that the issue of a raise for the First Selectman was of significant interest to the residents of Seymour.

 

20.  It is therefore found, by reasonable inference, that if the public had been reasonably apprised that the First Selectman’s salary was to be increased, public attendance at the meeting would have been larger than average.

21.  It is found, however, that only 12 to 15 people attended the respondent’s November 15, 2005 meeting, which was only an average attendance.

 

22.  Based on the foregoing findings, it is concluded that the agenda item “First Selectman’s Position” was not itself sufficient to apprise even the First Selectman himself, much less the public or the other members of the Board of Selectmen, that a raise for the First Selectman would be proposed, considered and adopted by the respondents at the November 15, 2005 meeting.

 

23.  The respondents contend, however, pursuant to Zoning Board of Appeals of Plainfield v. Freedom of Information Commission, 66 Conn. App. 279 (2001) that any insufficiency in the agenda item was cured by the fact that more than two thirds of the members of the board of selectmen eventually voted to approve the raise for the First Selectman, and that, therefore, two-thirds of them could have voted to add the item to the agenda.

 

24.  However, the respondents have misread Zoning Board of Appeals, which expressly concludes that “the plain language of §1-21 (a) [now §1-225(a)] requires that a new agenda item, not previously published, may be added to the agenda only after an affirmative vote of two-thirds of the members present and voting to add that item.”  [Emphasis added.]  The court further elaborated that the contrary interpretation now urged by the respondents:

 

… would eviscerate the statute. There would never be a need to vote affirmatively to add an item to the agenda where the item passed by a two-thirds vote on the merits. That would make the language of the statute superfluous in those instances. As the commission accurately points out in its brief: ''Once the matter has been already considered and discussed, a vote on whether such consideration and discussion should have been added to the agenda becomes meaningless because the subsequent vote cannot change what has already occurred.''

 

25.  It is found that there was no affirmative vote to add consideration of a raise in salary for the First Selectman to the agenda prior to the vote to grant such a raise.

 

26.  It is therefore concluded that the respondents Koskelowski, Rosebrock, Lombardi and the Board of Selectmen, violated §1-225(c), G.S.

 

27.  With respect to the complainant’s request that the actions of the respondents at the November 15, 2005 meeting to raise the First Selectman’s salary be declared null and void, §1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend ….

 

28.  It is found that, by failing to apprise the public of the actual business to be transacted concerning a raise for the First Selectman, respondents Koskelowski, Rosebrock, Lombardi and the Board of Selectmen, effectively denied the right of interested persons to attend that portion of the November 15, 2005 meeting.

 

29.  With respect to fines and penalties, §1-206(b)(2), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

30.  It is found that respondent Rosebrock, in drafting the agenda item, and in failing to postpone consideration of the pay raise for the First Selectman after a question was raised about the vagueness of the agenda, and respondent Koskelowski, in adding the agenda item to the agenda, and in failing to postpone consideration of the pay raise for himself after he learned that the agenda item actually meant consideration of such business, are the officials directly responsible for the denial of the right found in paragraph 28, above.  It is further found that such denial of such right was without reasonable grounds. 

 

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

 

            1.  The action by respondents Koskelowski, Rosebrock and Lombardi and the Board of Selectmen to increase the First Selectman’s salary at the November 15, 2005 meeting is declared null and void.

 

            2.  Respondents Koskelowski and Rosebrock shall forthwith jointly remit a civil penalty in the amount of $200.00 to the Commission.

 

            3.  The complaint against George Temple, Town Counsel, is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 14, 2008.

 

________________________________

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:

 

Melanie Kalako

Seven Third Avenue

Seymour, CT 06483

           

Robert Koskelowski, First Selectman,

Town of Seymour; Patrick Lombardi,

Deputy First Selectman, Town of Seymour;

Paul Rosebrock, Selectman, Town of Seymour;

George Temple, Town Counsel, Town of

Seymour; and Board of Selectmen,

Town of Seymour

c/o George Temple, Esq.

241 Coram Avenue

Shelton, CT 06484

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2005-596FD2/paj/5/20/2008