FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was scheduled to be heard as a contested case on October 9, 2008 at 11:30 AM.  At such time, the complainant filed a letter with the Commission authorizing Joan Foran and Dennis Foran to represent her at the October 9, 2008 hearing.     Neither Mr. Foran nor Ms. Foran is an attorney.  The October 9, 2008 hearing in this matter was postponed.  The matter was subsequently heard as a contested case on January 13, 2009, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   At such time, the complainant was represented by counsel, who filed an appearance on January 13, 2009.  For purposes of hearing, this matter was consolidated with Docket #FIC 2008-470; Dennis M. Foran and Christine D. Dunnack v. Board of Selectmen, Town of Andover; and Docket #FIC 2008-478; Dennis Foran and Joan Foran v. Board of Selectmen, Town of Andover.

 

            On January 20, 2009, Joan Foran, who is not a party in this matter and who was a witness at the January 13, 2009 hearing, filed a letter with the Commission, requesting to supplement her testimony concerning a conversation which took place after the January 13, 2009 hearing, and providing such supplemental testimony.  Ms. Foran copied several individuals on such letter, including counsel for the respondents, but not including counsel for the complainant.   By letter dated January 25, 2009, counsel for the respondents objected to the admission of such supplemental testimony.  The Commission declines to admit the proffered supplemental testimony of Ms. Foran because she is neither a party nor an intervenor in this matter.  See §1-21j-28, Regulations of Connecticut State Agencies (presiding officer may permit any party or intervenor to file added exhibits or written testimony, subject to the provision of such comment, reply and contest as due process shall require).

 

 

           

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 memorandum received and filed on July 7, 2008, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (hereinafter “FOI”) Act on June 16, 2008, by holding a meeting without adequate notice to the public.  The complainant requested that the respondent first selectman be assessed a civil penalty and that the action taken at the meeting be declared null and void. 

 

3.  Section 1-225(d), G. S., has been amended since the time of the filing of the complaint in this matter; however, such amendments are not relevant to this complaint.  At the time of the meeting in question, §1-225(d), G. S., provided 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…Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; provided, in case of emergency…any such special meeting may be held without complying with the foregoing requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the…clerk of such political subdivision…not later than seventy-two hours following the holding of such meeting.  The notice shall specify the time and place of the special meeting and the business to be transacted….

 

            4.   It is found that, on June 16, 2008, the tax collector of the town of Andover informed the respondent first selectman that she had just received a telephone call from a representative of the company which printed the town’s tax bills.  It is found that such representative informed the tax collector that, unless the town provided the mill rate to the printing company by the end of that day, the company could not guarantee that the bills would be printed and delivered to the town so that they would be ready for postage on June 30, 2008. 

 

             5.  It is found that, up until that point, the respondents believed they had more time to provide the mill rate to the printing company, and had planned to set the rate at a meeting later in the week.  It is found that, in the prior year, the town provided the mill rate to the company on June 19, 2007, which caused no problem with lateness of the bills. 

 

 6.  It is found that, if the tax bills were not mailed by June 30^th, they could not have been mailed until the end of July, thereby delaying payment of taxes for one month.  It is found that, had tax payments been delayed by one month in the summer of 2008, the town would not have been able to meet its payroll and education expenses. 

 

7.   It is found that the respondent first selectman decided to hold an emergency meeting on June 16, 2008, to set the mill rate.  It is found that all five members of the respondent board were contacted but that only three members were able to attend.

 

8.  It is found that notice of the June 16, 2008 meeting was filed with the town clerk at 1:15 P.M. on June 16, 2008.

 

9.  It is found that the June 16, 2008 meeting convened at 4:00 P.M. and adjourned at 4:12 P.M.  It is found the respondent board voted to set the mill rate at such meeting, adopting the rate that had been proposed by the Andover Board of Finance.  It is found that, after such meeting, the respondent selectman telephoned the printing company and provided it with the mill rate.  It is further found that the tax bills were eventually printed, that the respondents worked busily at town hall to place the bills in their respective envelopes, and that the bills were brought to the post office on June 30, 2008, and mailed fifteen minutes before the post office closed.    

 

10.  The complainant contends that there was no emergency on June 16, 2008.  The complainant further contends that, by operation of town charter, had the respondents not acted to set the mill rate on June 16^th, the mill rate would have reverted to the previous years’ rate, which was lower than the mill rate set on June 16, 2008. 

 

11.  The respondents contend that had they simply provided the previous years’ mill rate to the printing company on June 16, 2008, the tax bills which would have been generated would have contained an insufficient mill rate, thereby requiring a subsequent costly printing and mailing of eight thousand adjusted tax bills.  

 

12.   However, it is also found that the fact that subsequent adjusted tax bills might have to be sent out does not rise to the level of an emergency.  

 

13.  Based on the facts and circumstances of this case, it is found that an emergency did not exist on June 16, 2008. 

 

14.  It is concluded that the respondents violated the FOI Act, as alleged in the complaint.   

 

15.  With respect to the complainant’s request for the imposition of a civil penalty, §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.

 

            16.  It is found that the respondent first selectman is the official directly responsible for the violation.  However, the Commission notes that the first selectman was faced with a situation on June 16, 2008, which he reasonably believed required immediate action.  It is also found that the first selectman’s failure to comply with the FOI Act was not without reasonable grounds.  Therefore, the complainant’s request for a civil penalty in this matter is denied.  

 

            17.  The Commission also notes that in July, 2008, the town of Andover approved a budget by referendum, which set a new mill rate.  The Commission declines to declare null and void the action taken at the June 16, 2008 meeting.

 

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 comply with the notice requirements of §1-225(d), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 22, 2009.

 

 

________________________________

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:

 

Jolene D. Rocks

c/o Melissa Testa, Esq.

21 East Middle Turnpike

Manchester, CT 06042

           

Robert Burbank, First Selectman,

Town of Andover; and Board of

Selectmen, Town of Andover

c/o Dennis O’Brien, Esq.

O’Brien and Johnson

120 Bolivia Street

Willimantic, CT 06226

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2008-447FD/paj/4/27/2009