FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on May 30, 2008, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The complaint was consolidated for hearing with Docket #FIC 2008-111, Friends of Open Space v. Conservation Commission, Town of Fairfield; and First Selectman, Town of Fairfield.

 

            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 postmarked January 18, 2008, and filed January 22, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act at their December 20, 2007 meeting in that:

a.  an executive session was called to discuss an item that was not on the agenda;

b.  an executive session was called to discuss a pending legal claim when the agency’s attorney was not present;

c.  an executive session to discuss a pending legal claim was called when there was no legal claim against the agency;

d. the First Selectman was impermissibly present during the executive session; and

e.  discussion was not limited to the reason given for the executive session.

3.  It is found that the respondent Conservation Commission scheduled and held a regular meeting at 7:30 p. m. on December 20, 2007.

4.  It is also found that the respondent Conservation Commission noticed and held a special Inland Wetlands meeting notice for the same date and time.

5.  It is found that the Inland Wetlands notice provided for “discussion of pending legal claim with town attorney.”

6.  It is found the Conservation Commission’s regular meeting agenda did not contain a corresponding item for the discussion of a legal claim.

7.  It is found that the two meetings were held essentially contemporaneously, and attended by the same individuals and public officers and employees.

8.  It is found that respondent Conservation Commission, acting as the Inland Wetlands Agency of the Town, discussed in executive session a December 11, 2007 letter from an attorney for Black Rock Realty, in which Black Rock expressed its concerns with delays imposed by agents of the town with regard to Black Rock’s efforts to obtain a building permit authorizing the commencement of construction activities previously authorized by other town and state agencies.   It is further found that the expressed purpose of the letter was to advise the town that Black Rock considered the delays to be a violation of a certain agreement between Black Rock, the town and the State, and that Black Rock:

…hereby notifies the Town that it will take appropriate legal measures to enforce its rights under the Agreement and will, as necessary, seek reimbursement for all damages sustained as a result of the improper delay presently ongoing with respect to authorization for the issuance of a building permit by the various Town departments having jurisdiction with regard thereto.

9.  It is found that the discussion in executive session concerned the December 11, 2007 letter and the First Selectman’s decision to respond to the letter by removing the Black Rock matter, also known as the Fairfield Metro Center Project, from the jurisdiction of the town’s Conservation Commission staff, and designate a third party, Redniss and Mead, Inc., to serve as the Conservation Commission’s monitor, compliance review officer and coordinator of work for the project.

10.  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. “

11.  Section 1-200(6)(B), G.S., provides:

“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  … (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled …. 

 

12.  Section 1-200(8), G.S., provides:

 

 “Pending claim” means a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

13.  With respect to the agendas of regular meetings, §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 ….  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.

14.  With respect to the notices of special meetings, §1-225, G.S., provides in relevant part:  “The notice shall specify the time and place of the special meeting and the business to be transacted.”

15.  With respect to attendance at executive sessions, §1-231(a), G.S., provides:

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

16.  The complainant contends that the discussion of any pending legal claim was not on the agenda of the Conservation Commission’s regular meeting.

17.  However, it is found that the discussion of a pending legal claim was on the notice of the special meeting of the Conservation Commission sitting as the town’s Inland Wetlands agency. 

18.  It is found that no evidence was presented that noticing the discussion of the pending legal claim by way of a special meeting of the Conservation Commission sitting as the Inland Wetlands agency was in any way misleading, or lead to any confusion by the general public or the complainant.

19.  It is concluded that any dispute as to whether the item was properly on the Conservation Commission’s agenda, or the agenda of the Conservation Commission sitting as the Inland Wetlands agency, elevates form over substance.

20.  It is concluded that the respondents did not violate the FOI Act by discussing a matter that was on the special meeting notice of the Conservation Commission sitting as the Inland Wetlands agency, but not on the agenda of the regular meeting of the Conservation Commission.

21.  The complainant also contends that there was no claim pending against the respondents, as evidenced by the fact that their attorney was not present.

22.  It is concluded, however, that the December 11, 2007 letter from Black Rock’s attorney was a pending claim within the meaning of §1-200(8), G.S.

23. It is therefore concluded that the respondents permissibly convened in executive session.

24.  The complainant also contends that the First Selectman was impermissibly present during the executive session.

25.  However, it is found that not only is the First Selectman an ex officio member of the Conservation Commission, but that his presence was necessary in order to give testimony and opinion, particularly as he was the person who had formulated a response to Black Rock’s December 11, 2007 letter.

26.  It is therefore concluded that the First Selectman’s presence during the executive session did not violate §1-231(a), G.S.

27.  The complainant finally contends that the discussion was not restricted to Black Rock’s December 11, 2007 letter, but extended to such topics as prohibiting the Conservation Department from reporting to the Inland Wetlands Agency; replacing the Conservation Department staff with a private company; prohibiting the Inland Wetlands Agency from being informed by the private company; and other such matters tending to confine the operations of the Inland Wetlands Agency and expanding the role of Redniss and Mead in the Conservation Commission.

28.  It is found, however, that all such matters related to the respondent’s strategy in replying to Black Rock’s notice of its intent to commence legal action if its demands were not met.

29.  It is therefore concluded that the respondents did not violate the Freedom of Information Act by discussing a variety of ways in which they might reorganize responsibilities within the staff of the Conservation Commission, and assign those responsibilities to a private entity, in order to respond to the pending claim made by Black Rock.

 

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

 

            1.  The complaint is dismissed.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2009.

 

 

____________________________

S. Wilson

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:

 

Friends of Open Space

c/o Kathryn L. Braun, Esq.

1290 Post Road, Suite 2225

Fairfield, CT 06824

 

Conservation Commission,

Town of Fairfield; and

Conservation Commission,

as Inland Wetlands Agency,

Town of Fairfield

c/o Charles W. Fleischmann, Esq.

Bai, Pollock, Blueweiss & Mulcahy, PC

One Corporate Drive

Shelton, CT 06484

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-048FD/sw/1/16/2009