FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 6, 2008, at which time the complainant 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 dated April 23, 2008 and filed on April 25, 2008, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to conduct their March 12, and April 1, 2008 meetings in public “in accordance with the provisions of the FOI Act as required by certain provisions of a February 27, 2004 ordinance of the Town of Canterbury.”

 

3.      It is found that, on March 12, 2008, the respondent first selectman and the respondent chairmen met with the individual holding the tri-position of Town Planner, Zoning Enforcement Officer, and Inland Wetlands and Water Courses Enforcement Officer (hereinafter “enforcement officer”).  It is found that the aforementioned meeting was held without notice to the public or an agenda and that no minutes of the meeting are available.

 

4.      It is found that the discussion at the meeting described in paragraph 3, above, centered around some dissatisfaction with the performance of the enforcement officer and it was made clear that his termination was under consideration.

 

5.      It is found that the enforcement officer tendered his resignation the following day but after some consideration, informed the respondent first selectman, on or about March 27, 2008, that he wished to withdraw his resignation.

 

6.      It is found that by letter dated April 4, 2008, the respondent first selectman informed the now former enforcement officer, that “the panel had decided not to re-hire” him.

 

7.      At the hearing on this matter, the complainant contended that the decision described in paragraph 6, above, was made during a meeting of the respondents on or about April 1, 2008.  The complainant also contended that the March 12, and April 1, 2008 meetings should have been held in accordance with the FOI Act as required by certain provisions of a February 27, 2004 ordinance of the Town of Canterbury. 

 

8.      It is found that the ordinance described in paragraphs 2 and 7, above, provides in relevant part that:

 

. . . in the event that the Board of Selectmen, the Planning and Zoning Commission, or the Inland Wetlands and Water Courses Commission resolves to discharge the individual holding this position [of enforcement officer] for any reason, the passage of that resolution shall cause the First Selectman, and the chairs of the two commissions, to hold a public meeting (subject to the provisions of the Freedom of Information Act, and to be conducted according to Robert’s Rules of Order) to determine whether the individual should be terminated . . . .

 

9.      It is found that this Commission lacks jurisdiction to enforce the provisions of the ordinance described paragraph 8, above; however, this Commission has jurisdiction to determine if the meetings held on March 12 and April 1, 2008 were meetings of a public agency within the meaning of §1-200(1) and (2), G.S. 

 

10.   Section 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. 

 

11.   Section 1-200(1), G.S., provides in relevant part that:

 

“Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions . . . .

 

12.  The respondents contended at the hearing on this matter that there was no meeting under the FOI Act and that the complainant is not complaining about a meeting of one of the three public agencies but rather is complaining about a “non-meeting of a panel” that was not required to notice its meeting, or maintain minutes of it.  The respondent contended that the ordinance provides, in part, that if the board, or one of the two commissions, resolves to discharge the enforcement officer, then and only then is a public meeting required.  The respondent contended that no public meeting was required because neither board passed such a resolution. 

 

13.  At the hearing on this matter, the complainant contended that the ordinance is unique in that it creates a panel that is charged with a specific duty, which is to hire and fire a specific town employee, and that whenever the respondent first selectman and respondent chairmen meet for that purpose, they are a public agency and the meetings provisions of the FOI Act apply.

 

14.  It is concluded that the respondent first selectman and respondent chairmen constitute a committee created by the town with jurisdiction over the termination of the town’s enforcement officer.

 

15.  It is concluded, therefore, that when the respondent first selectman and respondent chairmen meet to determine whether the enforcement officer should be terminated, they are a “. . . committee of, and or created by . . .” the Town of Canterbury, and are a public agency within the meaning of §1-200(1), G.S.

 

16.  Section 1-206(b)(1), G.S., provides in relevant part that:

 

. . . A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held . . . .

 

17.  It is found that the complainant did not have notice in fact of the March 12, 2008 meeting described in paragraph 3, above, until April 4, 2008.

 

18.  It is found that the complaint in this matter was filed within thirty days after the complainant received notice in fact that the March 12, 2008 meeting was held.  Accordingly, it is concluded that this Commission has jurisdiction in this matter pursuant to §1-206(b)(1), G.S.

 

19.  It is found that the committee described in paragraphs 14 and 15, above, met on March 12, 2008 regarding the subject of the enforcement officer’s termination and encouraged the enforcement officer to resign rather than require the committee to follow the procedure outlined in the ordinance described in paragraph 8, above, to terminate him.

 

20.  It is found that the committee met “to discuss . . . a matter over which [it] has supervision, control, jurisdiction or advisory power” within the meaning of §1-200(2), G.S. 

 

21.  It is concluded, therefore, that the committee held a “meeting” within the meaning of §1-200(2), G.S.

 

22.  Section 1-225, G.S., provides in relevant part that:

 

(a) The meetings of all public agencies, except executive sessions . . . shall be open to the public . . . .

 

            23.  It is found that the March 12, 2008 meeting of the committee was not open to the public as required by §1-225(a), G.S., and it is concluded that the respondents violated §1-225(a), G.S., in that regard.

 

            24.  It is found that the panel was not convened on April 1, 2008 and therefore no meeting was held at that time.

 

 

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 open meetings requirements of §1-225(a), G.S.

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 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:

 

Ray Sulich

c/o Lloyd L. Anderson, Esq.

132 Westminster Road

PO Box 10

Canterbury, CT 06331

 

First Selectman, Town of

Canterbury; Chairman, Planning

and Zoning Commission, Town

of Canterbury; and Chairman,

Inland Wetlands and Watercourses

Commission, Town of Canterbury

c/o Edward B. O’Connell, Esq.

Waller, Smith & Palmer, P.C.

52 Eugene O’Neill Drive

PO Box 88

New London, CT 06320

 

 

 

 

__________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-293FD/paj/9/29/2008