FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

Jay Lewin,

 

                                Complainant

 

                against                   Docket #FIC 95-181

 

Mayor of New Milford, New Milford Town Council and New Milford Town Attorney,

 

                                Respondents                        July 26, 1995

 

                The above-captioned matter was heard as a contested case on June 9, 1995, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  On the basis of the evidence presented, the hearing officer did not find probable cause to believe that the respondents will violate 1-18a and 1-21, G.S., and therefore issued no preliminary order pursuant to 1-21i(b), G.S.

 

                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 1-18a(a), G.S.

 

                2.  By letter of complaint filed with this Commission on June 7, 1995, the complainant alleged that the respondents violated the provisions of the Freedom of Information ("FOI") Act by conducting an improper executive session on June 1, 1995.

 

                3.  On motion by the respondents at the hearing into this matter, the hearing officer removed the town attorney as a party respondent in the case

 

                4.  It is found that on June 1, 1995, the respondents conducted a special meeting during which they entered an executive session to discuss a request for a special waste authorization to the Department of Environmental Protection ("DEP") by an entity known as "Waste Management."

 

                5.  Specifically, the respondents considered the practicality of engaging a consultant, whether or not to proceed on the issue, and whether potential litigation against the DEP would be desirable depending upon any future findings a consultant may make.

 

FIC 95-181                                             Page 2

 

                6.  The respondents' executive session also included the following topics:

 

                a) the amount of money to be spent on consultants and    

        attorneys and the hiring of a lobbyist;

                b) the contents of some prior consultants' reports;

                c) the frequency of updates from lawyers and consultants;

                d) legal options of the town including the feasibility of a

   declaratory judgment before superior court, whether an

   immediate claim could be filed against the DEP, and

   appropriate timing of any such filings.

 

                7.  The respondents claim that the executive session at isue was permitted pursuant to 1-18a(e)(2) and, 1-18a(h)(3), G.S.

 

                8.  It is concluded that while the executive session topic identified in paragraph 6d), above, falls within the meaning of 1-18a(e)(2) and 1-18a(h)(3), G.S.; it is also concluded that the respondent's discussions concerning budgeting, hiring and the frequency of reports from consultants and attorneys falls outside the above-referenced exemptions.

 

                9.  It is accordingly concluded that portions of the respondent's June 1, 1994 executive sessions should have technically taken place in open session.

 

                10.  It is concluded that under the facts of this case, the respondent violated the provisions of 1-21(a), G.S., when it excluded the public from its discussion identified in paragraphs 6a) b) and c), above.

 

                11.  At the hearing into this matter, the respondent requested the imposition of civil penalties against the complainant for having filed a frivolous appeal, which request is herein denied.

 

                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 provisions of 1-21(a), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of July 26, 1995.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-181                                             Page 3

 

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:

Jay Lewin, Esq.

P.O. Box 603

Sherman, CT 06784

 

Mayor of New Milford, New Milford Town Council

 and New Milford Town Attorney

c/o Daniel E. Casagrande, Esq.

Secor, Cassidy & McPartland

301 Main Street

Danbury, CT 06810

 

                                                                              

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission