Final Decision FIC2003-324
In the Matter of a Complaint by
||Docket #FIC 2003-324|
Inland Wetlands Commission,
Town of Berlin,
March 24, 2004
The above-captioned matter was heard as a contested case on February 5, 2004, at which time the complainant and the respondent appeared 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 respondent is a public agency within the meaning of §1-200(l), G.S.
2. By letter of complaint, postmarked and filed on September 4, 2003, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act by:
(a) holding an executive session on August 5, 2003 to discuss litigation and failing to identify the specific `"litigation" discussed in such session; and
(b) not identifying the specific litigation discussed at executive sessions and not identifying any votes taken during such executive sessions.
3. With respect to the allegation described in paragraph 2a, above, it is found that the respondent held a regular meeting on August 5, 2003, during which the respondent convened in executive session and discussed litigation involving the respondent and the complainant (hereinafter “Pirozzoli litigation”).
4. Section 1-225(f), G.S., provides:
A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative
voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200. [Emphasis added].
5. Section 1-200(6), G.S., further provides, in relevant part:
(6) “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:... (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.
6. It is found that neither the agenda nor the minutes of the August 5, 2003 meeting specifically identified the litigation discussed during the executive session, however, the respondent stated aloud during the open meeting, and prior to entering into executive session, that the purpose of such session was to discuss the Pirozzoli litigation.'
The respondent has since issued corrected minutes for the August 5, 2003 meeting which indicate that the Pirozzoli litigation was taken up during the executive session held on that date.
7. It is concluded that stating the reason for an executive session during the open portion of a meeting, and prior to convening in executive session, comports with the requirement of §§1-200(6)(B) and 1-225(f), G.S.
8. It is therefore, concluded that the respondent did not violate the FOI Act as alleged in paragraph 2a, above.
9. With respect to the allegation described in paragraph 2b, above, §1-206(b)(1), G.S., provides, in relevant part:
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 therefrom 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.... [Emphasis added].
10. At the hearing on this matter, the complainant elaborated on the allegation described in paragraph 2b, above, and presented evidence that sometime during the fall and early winter of 2003, the respondent made certain decisions regarding the Pirozzoli litigation and that those decisions may have been made improperly during executive sessions. The complainant contends that those "fall and early winter decisions" are essentially votes that were improperly taken during executive sessions.
11. This Commission provided notice of the hearing on this matter to the parties along with a copy of the complainant's complaint, which sets forth the parameters of the allegations brought by the complainant, and therefore, the scope of the matters to be addressed by the Commission in the context of this appeal.
12. It is concluded that the allegation now being raised by the complainant concerning executive sessions held during the fall and winter, described in paragraph 10 above, is entirely beyond the scope of this complaint, and further is not a matter that this Commission has jurisdiction to address.
13. Consequently, it is concluded that the respondent did not violate the FOI Act as alleged in paragraph 2b, above.
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.
2. The Commission takes this opportunity to remind the respondent that in keeping with the requirement set forth in §1-210(a), G.S., that an agency make, keep and maintain a record of the proceedings of its meetings, the respondent should always indicate in its minutes the specific litigation addressed during an executive session.
3. In addition, in keeping with the interest of providing maximum notice to the public of matters to he addressed at meetings, the respondent should identify on its meeting agendas the specific matters to be addressed during executive sessions.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 24, 2004.
Ann B. Gimmartino
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G .S.. TIE FOLLOWING ARE TFIE 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:
c/o Vincent T. McManus, Jr., Esq. 116 South Main Street
Wallingford, CT 06492
Inland Wetlands and Watercourses Commission, Town of Berlin c/o Linda Clough, Esq.
Weber & Carrier LLP
24 Cedar Street
New Britain, CT 06052
Ann B. Gimmartino
Acting Clerk of the Commission