As of September 5, 2022, Freedom of Information Commission meetings and contested case hearings will resume being conducted in person. All parties and witnesses must appear in person for their contested case hearings and Commission meetings. Please access this link or contact the Commission for further information.

Final Decision FIC2015-334
In the Matter of a Complaint by
FINAL DECISION
Mark Dumas,
     Complainant
     against
Docket #FIC 2015-334
Joseph Kubic, Chairman, 
Town Council, Town of Stratford;
Town Council, Town of Stratford;
and Town of Stratford,
     Respondents
January 27, 2016

     The above-captioned matter was heard as a contested case on September 10, 2015, at which time the complainant and 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 email dated May 11, 2015, the complainant appealed to this Commission, alleging that the respondents’ “announced decision to meet in executive session on May 11, 2015,”1  regarding certain agenda items, described in paragraph 6, below, violated the Freedom of Information (“FOI”) Act.  The complainant requested the imposition of a civil penalty against the respondents and that any action improperly held in executive session be declared null and void. 

1
By filing his complaint approximately five hours before the May 11, 2015 meeting was scheduled, the complainant sought to obtain relief from the Commission prior to the meeting. However, this five-hour window was an insufficient amount of time to allow the Commission to docket, schedule, and completely adjudicate this matter.
     3. Section 1-225(a), G.S., provides, in relevant part, that: “[t]he meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public….”
     4. Section 1-200(6)(D), G.S., in relevant part, permits a public agency to enter into an executive session for discussion of:
[t]he selection of a site or the lease, sale or purchase of real estate by the state or a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would adversely impact the price of such site, lease, sale, purchase or construction until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned….
     5. It is found that the respondents held a regular meeting on May 11, 2015.  It is further found that on the agenda for the respondents’ May 11th meeting were the following two items: 
[a]  5.2.4 REDEVELOPMENT AGENCY – During the Redevelopment agency’s meeting of April 16, 2015, the   following was referred to Council:
16 Goodwin Place – Executive Session requested to discuss the sale of real estate when publicity prior to termination of negotiations would adversely impact the sale terms and price.
RESOLVED:  that the recommendation of the Redevelopment Agency is accepted….
[b]  5.3.3 STRATFORD FESTIVAL THEATER CONTRACT – 
 Executive Session requested to discuss the lease of real estate when publicity prior to termination of negotiations would adversely impact the lease terms and price.  [Emphasis in original].
     6. It is found that, during the May 11th meeting, the respondents convened in executive session to discuss item 5.2.4, described in paragraph 5[a], above.  It is found that the minutes for the May 11th meeting indicate that the Town Attorney requested that the respondents take item 5.2.4 into executive session for “the purpose that it is a property transaction and disclosure of facts and circumstances may result in a value increase.” 
     7. It is also found that, during the May 11th meeting, the respondents convened in executive session to discuss item 5.3.3, described in paragraph 5[b], above.  It is found that the minutes for the May 11th meeting indicate that the Town Attorney requested that the respondents take item 5.3.3 into executive session “for the purpose to discuss the lease of real estate when publicity prior to termination of negotiations would adversely impact the lease terms and price.”
     8. At the hearing in this matter, counsel for the respondents stated that the minutes reflect a clear and valid reason for going into executive session.  Counsel represented that, while the Town still has an ownership interest in the properties described in paragraph 5, above, the respondents have a compelling interest for entering into executive session to discuss the sale and lease of such properties, respectively.  It is noted that while the respondents’ counsel presented argument at the contested case hearing, the respondents did not testify about the reasoning involved in convening an executive session to discuss items 5.2.4 and 5.3.3, described in paragraph 5, above. 
     9.  It is found that the respondents produced no evidence to support their claim that the executive sessions, described in paragraphs 6 and 7, above, were permissible pursuant to §1-200(6), G.S.  The respondents failed to prove that discussing the sale of 16 Goodwin Place and the lease of the Stratford Festival Theater, during the open portion of the May 11th meeting, would have adversely impacted the price of such sale and lease, respectively.  It is therefore concluded that the respondents violated the open meetings provisions of §1-225(a), G.S., by discussing the items described in paragraph 5, above, in executive session. 
     10.  With regard to the requested remedies, the complainant, at the hearing, requested that the hearing officer incorporate the findings and conclusions set forth in the proposed final decision in Docket #FIC 2015-079; Mark Dumas v. Joseph Kubic, Chairman, Town Council, Town of Stratford; Town Council, Town of Stratford; and Town of Stratford, which was transmitted to the parties approximately two weeks prior to the hearing in this matter and thereafter adopted by the Commission at its September 24, 2015 meeting.  The Commission takes administrative notice of its final decision in Docket #FIC 2015-079, which concluded that the respondents violated the open meetings provisions of §1-225(a), G.S., by discussing certain agenda items in executive session at their January 12, 2015 regular meeting.  In addition to ordering the respondents to strictly comply with the requirements of §1-225(a), G.S., the Commission ordered the respondents, or their designee, to arrange for an FOI Act training session to be conducted by staff of the FOI Commission.  The Commission notes that in Docket #FIC 2015-079, the respondents did not testify about the reasoning involved in convening in executive session. 
     11.  Given that no evidence was presented at the contested case hearing in this matter which would tend to show that any kind of decision-making or voting occurred during the respondents’ executive sessions described in paragraphs 6 and 7, above, and given that the respondents’ May 11th meeting was noticed and held prior to the Commission issuing its final decision in Docket #FIC 2015-079, the Commission in its discretion declines to impose the remedies requested by the complainant in this matter. 
     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
§1-225(a), G.S.

     2. Forthwith, the respondents, or their designee, shall contact the FOI Commission, if
they have not done so already, to arrange for an FOI Act training session to be conducted by the staff of the FOI Commission.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 27, 2016.

__________________________
Cynthia A. Cannata
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:
Mark Dumas
167 Cherry Street #107
Milford, CT  06460
Joseph Kubic, Chairman, Town Council, Town of Stratford; Town Council, Town of Stratford;
and Town of Stratford
c/o Michael S. Casey, Esq.
The Jackson Law Group, LLC
Two Enterprise Drive
Shelton, CT  06484
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2015-334/FD/cac/1/27/2016