FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Sharon Daly,
Complainant
against Docket
#FIC 87-86
Public Utilities Commission
of the Town of Wallingford,
Respondent June
24, 1987
The above-captioned matter was heard as a contested case
on May 4, 1987, at which time the complainant and the respondent 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:
1. The
respondent is a public agency within the meaning of §1-18a(a), G.S.
2. In the
early 1950s the warden of the Borough of Wallingford entered into 4 contracts
with a developer to guarantee a cap on sewer rates for properties in an area
currently known as West View Hills. The
contracts, good for 99 years, applied to approximately 360 homes and specified
maximum rates of from $10 to $15 a year.
3. The Town
of Wallingford recently received a federal grant in the amount of $15 million
for a new sewage treatment plant. One
condition of the grant is the imposition of uniform sewer user charges. As a result, the Town of Wallingford, in
1986, issued uniformly-imposed sewer user bills averaging $122 a year.
4. Upon
receipt of their 1986 sewer user bills, certain West View Hills homeowners made
known their opinion that they were exempted from the new, higher rates for
sewer use. The concerns raised by the
homeowners led to a meeting, on January 29, 1987, of the respondent and 6
representatives of the homeowners. The
homeowners' claims of exemption were also discussed at meetings of the
respondent held on February 13, 1987 and February 24, 1987.
Docket #FIC 87-86 Page
Two
5. The
respondent held a fourth meeting on February 28, 1987 during which it convened
in executive session "for the purpose of discussing pending litigation
with regard to the 'Westview Hills' sewer agreement situation."
6. Present
at the February 28, 1987 executive session, in addition to members of the
respondent, were 6 members of the Wallingford town council, the mayor, an
assistant town attorney, the director of public utilities and a law clerk.
7. By letter
of complaint filed with the Commission on March 26, 1987 and amended on April
2, 1987 the complainant alleged that the respondent lacked a proper purpose for
the executive session because no litigation was pending as of the date of the
meeting and that the attendance of persons other than the members of the
respondent violated §1-21g(a), G.S. An
additional claim, regarding the minutes of the meeting, was withdrawn at
hearing following submission by the respondent of amended minutes.
8. The
complainant requested that any records of the executive session be ordered
disclosed and that, if no such records exist, the respondent be ordered to
prepare an account of the executive session.
9. The
respondent claims the February 28, 1987 executive session was properly held
pursuant to §1-18a(e)(2), G.S. to discuss strategy and negotiations with
respect to pending claims and litigation, citing a 1979 decision of this
Commission, FIC #78-249, Robert H. Boone v. Town of Vernon and Town Council
of the Town of Vernon.
10. It is
found that as of the date of hearing no litigation had been filed concerning
the West View Hills homeowners' assertions regarding their sewer user charges.
11. It is
concluded that the February 28, 1987 executive session was not properly
convened to discuss strategy and negotiations with respect to pending
litigation within the meaning of §1-18a(e)(2), G.S.
12. It is also
found that the homeowners' assertions were in the nature of a petition to the
respondent, a public agency, acting in its administrative capacity. The respondent's response to the homeowners'
assertions was as an administrative agency exercising its decision-making
authority, not as a respondent to a claim within the meaning of §1-18a(e)(2),
G.S.
Docket #FIC 87-86 Page
Three
13. It is
concluded that the February 28, 1987 executive session was not properly
convened to discuss strategy and negotiations with respect to a pending claim
within the meaning of §1-18a(e)(2), G.S.
14. It is
further concluded that the respondent's February 28, 1987 executive session
violated §1-21, G.S.
15. The Commission
notes that the decision in the Boone case was explicitly limited to the
facts therein and that a threatened lawsuit was, in fact, filed shortly after
the questioned executive session was held.
16. The
respondent claims that the presence of persons other than members of the
respondent was necessary to inform them about the homeowners' objections to the
sewer user charges, to take advantage of their particular knowledge of
financial and legal aspects of the matter and to discuss strategy for reaching a
settlement.
17. It is
found that the respondent failed to prove that it limited attendance at the
February 28, 1987 executive session as required by §1-21g(a), G.S.
18. At hearing
the respondent stated that the February 28, 1987 executive session was not tape
recorded and was unable to state whether any notes of the meeting existed.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint.
1. The
respondent henceforth shall convene in executive session only for one or more
of the proper purposes listed at §1-18a(e), G.S. and shall limit attendance at
such executive sessions to members of the respondent and to persons whose
presence is necessary within the meaning of §1-21g(a), G.S.
2. The
respondent forthwith shall provide the complainant with copies of all existing
records which reflect what was discussed at the February 28, 1987 executive
session. If no such records exist, the
respondent, within one week of the Final Decision in this matter, shall provide
the complainant with an affidavit so stating.
Docket #FIC 87-86 Page
Four
3. If no
records reflecting what was discussed at the respondent's February 28, 1987
executive session exist, the respondent, within two weeks of the Final Decision
in this matter, also shall provide the complainant with a memorandum
reflecting, to the fullest extent possible, the discussions and occurrences at
such executive session.
Approved by order of the Freedom of Information
Commission at its regular meeting of June 24, 1987.
Catherine
I. Hostetter
Acting
Clerk of the Commission