FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 23, 2008, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of §1-200(1), G.S. 

 

2.  By letter dated and filed July 14, 2008, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 (a) failing to properly notice its July 9, 2008 meeting, at which the respondent voted to appoint a new executive director;

 

(b) discussing a matter that was not on the agenda for the July 9, 2008 meeting, without first voting to add such matter to the agenda; and

 

(c) failing to give the complainant adequate notice of the meeting. 

 

The complainant requests that the Commission declare null and void “the meeting and actions” of the respondent taken at such meeting. 

 

3.  It is found that the complainant is one of five commissioners governing the respondent housing authority.

 

4.  Section 1-225(d), G.S., provided, at the time of the alleged violation[1], 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 secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting….The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency.  In addition, such written notice shall be delivered to the usual place of abode of each member of the public agency so that the same is received prior to such special meeting.  The requirement of delivery of such written notice may…be dispensed with as to any member who is actually present at the meeting at the time it convenes.

 

5.  With regard to the allegation described in paragraph 2(a), above, it is found that, in January 2008, the respondent filed its schedule of regular meetings for 2008 with the town clerk.  It is further found that such schedule provides that the regular meetings of the respondent shall be held at the Westhill Gardens Congregate Housing (“Westhill Gardens”), at noon, on the second Wednesday of each month, and that the July meeting was to be held on July 9, 2008.  

 

6.  It is found that, on July 9, 2008, the respondent held a meeting at its offices, located at 24 Bluefield Drive, Manchester, Connecticut (the “July 9 meeting”), not at Westhill Gardens.  It is also found that the meeting was called to order at 5:40 p.m. 

 

7.  It is found that, although described as a regular meeting on the agenda, the July 9 meeting was a special meeting of the respondent, because the meeting was not held at the location and time indicated on the schedule of regular meetings, described in paragraph 5, above.  It is therefore concluded that the notice requirements of §1-225(d), G.S., apply.

 

8.  It is found that the respondent filed notice of the time and place of the July 9 meeting with the town clerk less than twenty-four hours prior to the time of such meeting. 

 

9.  It is also found that the respondent, in failing to timely file the notice described in paragraph 8, above, further failed to specify the business to be transacted at the July 9 meeting. 

 

10.  It is therefore concluded that the respondent violated the notice requirements of §1-225(d), G.S., as alleged in paragraph 2(a), above.

 

11.  With regard to the allegation described in paragraph 2(b), above, it is found that, at the July 9 meeting, under agenda item 6, “Chairman’s Report,” the respondent voted to accept the resignation of the then executive director, Ms. Shanley.  It is found that item 7.C. on the agenda stated “Discussion of Executive Director’s Contract,”  and that, after the respondent voted to discuss such agenda item, the chairman of the respondent stated that he would like to present Ms. White, the candidate for the executive director position, and asked her to speak.  It is found that the complainant voiced his objection to the appointment of Ms. White without the respondent having conducted a more thorough search, and after some discussion, a motion was made, and seconded, to appoint Ms. White as the new executive director, and the motion passed by a 2-1 vote, with one abstention.

 

12.  It is found that the matters discussed at the July 9 meeting, described in paragraph 11, above, are “other business,” within the meaning of §1-225(d), G.S., which were not permitted to be discussed at a special meeting. 

 

13.  It is therefore concluded that the respondent violated §1-225(d), G.S., as alleged in paragraph 2(b), above.

 

14.  With regard to the allegation described in paragraph 2(c), above, it is found that the notice and agenda for the July 9 meeting were mailed to the commissioners on July 7, 2008.  It is found that one commissioner received her notice and agenda on July 8, 2008, but that the complainant did not receive his notice and agenda until July 10, 2008.  It is further found, however, that the July 9 meeting, although scheduled to begin at 4:30 pm, did not actually begin until 5:40 pm, because three of the five commissioners were not present at 4:30 pm.  It is found that phone calls were made to the complainant and the other three commissioners, to remind, or inform them, of the meeting, and that the meeting was delayed until two of the commissioners who stated that they wished to be present, including the complainant, could arrive.

 

15.  It is therefore found that the complainant had notice of, and was present at, the July 9 meeting at the time it convened.

 

16.  The complainant testified at the hearing in this matter that his notice of the July 9 meeting, described in paragraph 14, above, was inadequate because it was not provided in the same manner, i.e., the same number of days in advance of the meeting, as was customary.  However, it is found that the FOI Act does not require the respondent to provide notice to a member of a public agency, except as provided in §1-225(d), G.S.  In light of the finding in paragraph 15, above, that the complainant had notice of, and was present at, the July 9 meeting at the time it convened, it is concluded that the respondent did not violate the abode delivery requirements of §1-225(d), G.S.

 

17.  It is found that, sometime after the July 9 meeting, the complainant challenged the validity of the notice of such meeting, and thus the validity of the action taken at such meeting, and requested a legal opinion regarding such matters from counsel for the respondent.  It is found that counsel issued a written opinion stating that the notice of the July 9 meeting was sufficient, and that all actions taken at such meeting were legal and valid, but nonetheless advised the chairman of the respondent to call a special meeting to ratify the votes taken at the July 9 meeting.    

 

18.  It is found that the respondent properly noticed, and held, a special meeting, on August 27, 2008.  It is further found that, at the August 27 meeting, the respondent voted to ratify the votes taken at the July 9 meeting, including the action to appoint Ms. White as the new executive director.    

 

19.  With regard to the complainant’s request for an order from this Commission declaring null and void “the meeting and actions” of the respondent at the July 9 meeting, the Commission declines to do so, in light of the finding in paragraph 18, above.

 

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

            1.   Henceforth, the respondent shall strictly comply with the notice requirements of the FOI Act.

 

            2.   The Commission suggests that counsel for the respondent, any current individual members of the respondent housing authority, who were members of the respondent at the time of the July 9 meeting, and any other staff members of the respondent with responsibilities under the FOI Act, attend a FOI workshop to be conducted by a member of the Commission’s staff. 

 

 

 

           

Approved by Order of the Freedom of Information Commission at its regular meeting of January 29, 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:

 

Timothy H. Becker

72 Scarborough Road

Manchester, CT  06040

 

Housing Authority,

Town of Manchester

c/o Malcolm F. Barlow, Esq.

Barlow & Murphy, LLP

172 East Center Street

Manchester, CT  06040

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-467FD/sw/2/2/2009