FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on October 23, 2009, at which time the complainants 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 of complaint filed May 19, 2009, the complainants appealed to the Commission, alleging that the respondent Board of Assessment Appeals violated the Freedom of Information (“FOI”) Act by meeting secretly and without notice to render a decision on the complainants’ appeal of their assessment.   

 

            3.  It is found that the complainants, after receiving a notice of their property’s assessment from the respondents, were afforded the opportunity to meet with a representative of J.F. Ryan Associates, the firm that assisted the respondents with their revaluation, to begin the process of appealing their assessment.

 

4.  It is found that the complainants subsequently attended what they expected to be the hearing on their tax assessment on April 16, 2009, conducted by Donald Overton, an alternate member of the respondent Board of Assessment Appeals, and Michael Stewart, Assessor for the City of Norwalk.  At this meeting the complainants were informed that the full respondent Board would be meeting privately to decide their appeal by April 30, 2009, after receiving information from Overton and the Assessor.  The complainants understood from the April 16, 2009 meeting that Overton would act as their “advocate” at the full Board’s subsequent private meeting.

5.  It is found that the respondent Board met sometime after April 16, 2009 and before May 29, 2009 and decided the complainants’ tax appeal in executive session (the “disputed meeting”).

 

6.  Section 1-200(5), G.S., provides in relevant part:

 

“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.

 

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

 

(a)  The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.  Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available.  Each such agency shall make, keep and maintain a record of the proceedings of its meetings.

 

(b) Each such public agency of the state shall file not later than January thirty-first of each year in the office of the Secretary of the State the schedule of the regular meetings of such public agency for the ensuing year and shall post such schedule on such public agency’s Internet web site, if available. . . .

 

(c)  The agenda of the regular meetings of every public agency… shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business ….

 

(d)  Notice of each special meeting of every public agency shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 ….

 

8.  Section 1-200(6), 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:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (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;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (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; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

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

 

A notice of appeal [to the FOI Commission] 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. 

 

10.  It is concluded that the disputed meeting described in paragraph 6, above, was a meeting within the meaning of §1-200(5), G.S.

 

11.  It is found that the respondents did not provide notice of the disputed meeting in the manner required by subsections (b), (c) and (d) of §1-225, G.S.

 

12.  It is found that the disputed meeting was not open to the public.

 

13.  It is found that the respondents conducted the disputed meeting in what purported to be executive session, without a permissible purpose pursuant to §1-200(6), G.S.

 

14.  It is found that the respondents did not keep or make available the minutes and record of vote concerning the disputed meeting.

 

15.  It is also found that the disputed meeting was “unnoticed or secret” within the meaning of §1-206(b)(1), G.S.

 

16.  It is concluded that the respondents violated §§1-200(5) and 1-225, G.S., at their disputed meeting.

 

17.  In their complaint, the complainants requested “that the Commission annul all decisions by the Board and remand the matters for hearings in compliance with the law,” and that the Commission “deem the practice of assigning an agent of the Assessor, or individual member of the Board, to act as an ‘advocate’ for the property owner in violation of the Freedom of information Act, and state law governing the procedures of the Board of Assessment Appeals, and direct the Board to conduct any future hearings in compliance with both C.G.S. §1-225 and C.G.S. §12-110(b).”

 

            18.  Because the Commission has received no evidence or argument concerning the effect of a null and void order, other than a suggestion that the complainants would lose the 2% decrease granted to them at the disputed meeting, and because the complainants did not lose the right to file a tax appeal from the respondents’ determination, the Commission in its discretion declines to declare the disputed meeting null and void.

 

            19.  Additionally, the Commission lacks the power to direct the respondents to assign duties to the tax assessor, or to direct the board to conduct hearings in compliance with §12-110(b), G.S.

 

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 requirements of §§1-200(5) and 1-225, G.S., in conducting hearings and meetings concerning tax appeals.

 

2.  The respondents shall forthwith contact Commission staff to arrange for an educational workshop concerning the requirements of the FOI Act. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 28, 2010.

 

 

____________________________

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:

 

Doreen Rich and David Rich

C/o Edwin Camacho, Esq.

Law Offices of Edwin Camacho

29 South Main Street

Norwalk, CT 06854

Board of Assessment Appeals,

City of Norwalk; and

City of Norwalk

C/o Brian L. McCann, Esq.

Norwalk Corporation Counsel, POS #2

125 East Avenue

Norwalk, CT 06851

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-303FD/sw/4/30/2010