FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 15, 2009, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  By letter dated September 9, 2009 and received by the Commission on September 10, 2009, the complainant Ellen Bergquist withdrew her complaint against the respondents in this matter.  Accordingly, the case caption has been amended to reflect the withdrawal.

 

The Commission takes administrative notice of the record and final decision in Docket #FIC 2008-688; Ellen Bergquist, Dana L. Evans and Karen L. Emerick v. Richard Johnson, Town Manager, Town of Glastonbury; Susan Karp, Chairperson, Town Council, Town of Glastonbury; Carol  H. Ahlschlager, Vice Chairperson, Town Council, Town of Glastonbury; Stewart Beckett III, Barbara C. Wagner, Kurt P. Cavanaugh, as members, Town Council, Town of Glastonbury; Town Council, Town of Glastonbury; Alan Bookman, Superintendent of Schools, Glastonbury Public Schools; Richard Brown, Chairman, Board of Education, Glastonbury Public Schools; and Board of Education, Glastonbury Public Schools.

 

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 and faxed on January 16, 2009, and filed on January 20, 2009, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by discussing matters during certain executive sessions that were not stated in the minutes for those executive sessions and by convening in those executive sessions for impermissible purposes, in violation of §1-200(6), G.S.  The complainants further alleged that such executive sessions were secret meetings for which no notice, agenda, or minutes exist and therefore, the respondents violated §1-225(a), G.S.  The complainants also alleged that the respondents voted by consensus during the executive sessions and failed to record such votes, in violation of §1-225(a), G.S.  The complainants alleged that the violations occurred during 19 meetings that were held between January 8 and December 19, 2008 and on January 13, 2009.

 

3.      By motion dated September 15, 2009, the respondents moved to dismiss the complaint with respect to all alleged violations except for those that allegedly occurred at the January 13, 2009 meeting, claiming that the complainants’ appeal was filed untimely and therefore, the Commission lacked jurisdiction to hear the appeal with respect to those meetings.

 

4.      At the hearing on this matter, and in their briefs, the complainants contended that because the respondents convened in executive session for purposes other than those stated in the minutes, the executive sessions held during the 19 meetings described in paragraph 2, above, constitute “unnoticed or secret meetings” within the meaning of §1-206(b)(1), G.S.  The complainants also contended that they only became aware of the executive sessions held during the January 8 through December 19, 2008 meetings on December 20, 2008 when they reviewed the minutes for each meeting.  The complainants contended that, therefore, the tolling of the thirty days should begin on December 20, 2008.  The complainants also contended that the Commission, in determining the timeliness of their appeal, should use the date on which the appeal was faxed to the Commission and it should then find that their appeal was timely filed and that it does have jurisdiction to hear their appeal with respect to all 19 meetings.  

 

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

 

Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal there from to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. 

 

6.      It is found that there was a notice, an agenda and minutes for all 19 meetings.

 

7.      It is found that the minutes for each of the 19 meetings include minutes for the executive sessions, which minutes include the reason for the executive session, the record of the vote to convene in executive session, the names of the attendees and the duration of the executive session.

 

8.      It is found that the purpose of the executive sessions at issue in this complaint was described on the agenda for each meeting as “acquisition of land.”

 

9.      It is found that, in this case, the notice, agenda and minutes for all 19 meetings reasonably apprised the public of the executive sessions.

 

10.   It is found, therefore, that the meetings, and the executive sessions held during them, were not unnoticed or secret. 

 

11.   Consequently, the complainants’ appeal should have been filed within thirty days of the date of the alleged violations.  

 

12.   With respect to the date on which the appeal was filed, §1-21j-22 of the Regulations of Connecticut State Agencies provides:

All papers and other recorded information governed by sections 1-21j-1 to 1-21j-57 of the Regulations of Connecticut State Agencies, shall be deemed to have been filed on the date they are recorded as having been received by the commission at its principal office . . . .

13.   Section 1-21j-15 of the Regulations of Connecticut State Agencies provides:

Computation of any period of time referred to in sections 1-21j-1 to 1-21j-57, inclusive, of the Regulations of Connecticut State Agencies begins by first counting the day after the day on which the precipitating event occurs, and ends on the last day of the period so computed.  The last day of the period is to be included unless it is a day on which the principal office of the commission is closed, in which event the period shall run until the end of the next following business day. If the period of time, including the intervening Saturdays, Sundays and legal holidays, is five (5) days or less, such Saturdays, Sundays and legal holidays shall be excluded from the computation; otherwise such days shall be included in the computation.

14.   It is found that the complainants faxed their appeal in this matter to the Commission on Friday, January 16, 2009 at 11:42 p.m. 

 

15.   It is found that because the complainants faxed their appeal after the close of business on Friday, January 16, 2009 and because the Commission was closed on the following Monday, January 19, 2009, the complainants’ appeal was not received and recorded as filed until Tuesday, January 20, 2009. 

 

16.   It is also found that because the last day to appeal the violations that allegedly occurred at the respondents’ December 19, 2008 meeting was on a Sunday, January 18, 2009, the appeal period for that alleged violation ran until the end of the Commission’s next business day which, as described in paragraph 15, above, was Tuesday, January 20, 2009. 

 

17.   It is found, therefore, that the notice of the appeal in this matter was filed more than thirty days after the alleged violations described in paragraph 2, above, except for those that allegedly occurred at the December 19, 2008 and January 13, 2009 meetings. 

 

18.   Consequently, it is concluded that, pursuant to §1-206(b)(1), G.S., the Commission lacks jurisdiction over the complainants’ appeal of the alleged violations that occurred at all meetings described in paragraph 2, above, except for those that allegedly occurred at the December 19, 2008 and January 13, 2009 meetings and thus, the respondents’ motion is hereby granted in part.

 

19.   With respect to the complainants’ allegation that the respondents violated §1-200(6), G.S., at their December 19, 2008 and January 13, 2009 meetings, that section provides in relevant part that:

 

“Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  . . . (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned . . . .

 

20.   The complainants explained, at the hearing on this matter, that their allegation is that the respondents purported to convene in executive session at their December 19, 2008 and January 13, 2009 meetings, to discuss the acquisition of certain property related to the construction of a magnet school pursuant to §1-200(6)(D), G.S., but that the discussion did not stay strictly within the scope of the discussion permitted under that provision.  The complainants also contended at the hearing that, according to their information and understanding, the property was already selected at the time of the meeting and was going to be given to the town at no cost.  Therefore, they contended that the respondents should not have had any discussion related to the property in executive session during the December 19, 2008 and January 13, 2009 meetings.

 

21.   With respect to the December 19, 2008 meeting, it is found that at the time of that meeting, the property the respondents sought to acquire was owned by MDC (hereinafter “MDC property”) and that it was going to be given to the town at no cost. 

 

22.   It is found that, at the December 19, 2008 meeting, the respondents convened in executive session to discuss the MDC property’s location along with the site plan for the magnet school that was to be constructed on it.  It is found that the plan for the school is directly related to the acquisition of the property because whether the school would fit on the property was a key factor in determining whether the respondents would acquire it.  It is found that, in that regard, the respondents also discussed the purchase of other sites as well as acquiring more property from MDC.  It is found that the respondents also discussed how the town manager should proceed in the negotiations with MDC for the additional property. 

 

23.   It is found that no votes were taken during the executive session described in paragraph 22, above.

 

24.   It is found that, in Docket #FIC 2008-688,[1] the Commission determined that the respondents’ convened in executive session for a permissible purpose under §1-200(6)(D), G.S., when it discussed the acquisition of the MDC property for the magnet school in executive session at its September 30, 2008 meeting.

 

25.   It is found that the purpose of the respondents’ December 19, 2008 executive session was the same as that for the September 30, 2008 executive session and that there had been no substantive change in the circumstances related to the acquisition of that property. 

 

26.   It is found, therefore, that there is no need to revisit the issue herein.

 

27.   With respect to the January 13, 2009 meeting, it is found that the minutes for that meeting state that no action was taken and no discussion was held related to the acquisition of land.  

 

28.   It is found that the respondents did not convene in executive session to discuss the acquisition of any property during that meeting.  

 

29.   It is found that the respondents convened in executive session during the January 13, 2009 meeting to discuss “records, reports, and statements of strategy or negotiations with respect to collect bargaining,” which executive session is not the subject of the complaint in this matter.

 

30.   It is concluded, therefore, that the respondents did not violate the FOI Act during its December 19, 2008 or January 13, 2009 meetings, as alleged by the complainants.

 

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

 

1.      The complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 13, 2010.

 

 

___________________________

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:

 

Ellen Bergquist

83 Heritage Drive

Glastonbury, CT 06033

 

Dana Evans

203 Mountain Road

Glastonbury, CT 06033

 

Karen Emerick

175 Coldbrook Road

South Glastonbury, CT 06073

 

Susan Karp, Chairperson, Town

Council, Town of Glastonbury;

Carol Ahlschlager, Vice Chairperson,

Town Council, Town of Glastonbury;

Stewart Beckett III, Member, Town

Council, Town of Glastonbury; Whit

Osgood, Member, Town Council,

Town of Glastonbury; Kurt Cavanaugh,

Member, Town Council, Town of

Glastonbury; Marti Curtiss, Member,

Town Council, Town of Glastonbury;

Caroline Treiss, Member, Town Council,

Town of Glastonbury; Barbara Wagner,

Member, Town Council, Town of

Glastonbury; Timothy Coon, Town of

Council, Town of Glastonbury; and Town

Council, Town of Glastonbury

c/o Morgan P. Rueckert, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2009-037FD/paj/1/14/2010