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Final Decision FIC2011-284
In the Matter of a Complaint by
FINAL DECISION
Handsome, Inc.,
     Complainant
     against
Docket #FIC 2011-284
Planning and Zoning Commission,
Town of Monroe; and Town of
Monroe,
     Respondents
March 28, 2013

     The above-captioned matter was heard as a contested case on November 14, 2011, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. 
     A hearing officer’s report dated February 29, 2012 was issued to the parties, and at a meeting of the Commission on March 28, 2012, the Commission voted to adopt the hearing officer’s report.  On April 18, 2012, the respondents appealed the final decision to the Superior Court, and on December 28, 2012, the court issued a Memorandum of Decision remanding the matter to the Commission for further articulation of the basis of its decision with regard to four specific points.  See Planning and Zoning Commission of the Town of Monroe et al. v. Freedom of Information Commission, et al., Superior Court, Judicial District of New Britain, Docket No. CV 126015308S (December 28, 2012).
     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.  It is found that, in March 2003, the respondent commission (“commission”) approved an application from the complainant to develop property located at 125 Garder Road in Monroe, Connecticut (“property”), and, in May 2003, issued to the complainant a special exception permit (“permit”) under which it was allowed to remove rocks and earth from the property to prepare the site for construction of a new industrial building.  It is found that the permit was due to expire in May 2008.
     3.  It is found that, approximately one month prior to the expiration of the permit, the complainant applied to the commission for an extension of the existing permit for an additional five years.  It is found that, at its April 24, 2008 meeting, the commission considered, and unanimously voted to deny, such application.  It is found that the complainant appealed the commission’s denial of its application to the superior court on May 30, 2008.

     4.  On appeal to the superior court, the complainant argued that the commission improperly denied the application for extension of its permit, because it failed to follow well settled law regarding the factors to be considered when a party applies for renewal of a special exception permit.  According to the complainant, the commission denied the application because of bad feelings toward the complainant and the property.
     5.  The respondents, on the other hand, argued on appeal that they properly denied the extension application because the complainant had, essentially, failed to comply with the conditions of the original permit. 
     6.  After a hearing before Judge Owens, the court determined that the commission improperly denied the complainant’s application, because its denial was based on the complainant’s alleged failure to comply with the conditions of the original permit, and such failure is not a valid ground on which to deny a request for an extension of a special exception permit.  Handsome Inc. v. Monroe Planning and Zoning Commission, Superior Court, Judicial District of New Britain, Docket No. CV-084025399 (Sept. 9, 2010, Owens, JTR). 
     7.  It is found that the commission did not appeal the decision, described in paragraph 6, above.
     8.  It is found that, by letter to the respondents dated October 1, 2010, counsel for the complainant requested that:
          the Commission issue the five-year permit extension, pursuant to the Order of the Superior Court in the above-captioned case.  The five-year period should begin to run from the date the extended permit is issued.  The Court’s order is clear that the extension is granted, therefore, no new conditions should attach.
     9.  It is found that, by letter dated November 2, 2010, counsel for the complainant again contacted the commission, stating:
          On October 1, 2010, I wrote to this Commission requesting that it issue the five year permit extension for Handsome, Inc., pursuant to the Order of the Superior Court in the above-captioned case.  It has been more than 30 days since my last letter and more than 50 days since the Court’s Order.  I respectfully request that this matter be placed on the Commission’s next agenda for approval of the permit in compliance with the Court’s order.
     10. It is found that, on May 5, 2011, the commission held a regular meeting (“May 5th meeting”).  It is further found that the agenda for such meeting listed, in relevant part, the following items:
          ...
          3. RECESS REGULAR MEETING and CONVENE to EXECUTIVE SESSION.  Review of enforcement procedures with Town Engineer/Acting Clerk of the Commission, First Selectman, Land Use Attorney and Zoning Enforcement Officer.
          4. RECONVENE REGULAR MEETING
          ...
          15. OTHER BUSINESS
          16. ENFORCEMENT.  125 Garder Road – activity without permits.
          ...
          22. LEGAL ISSUES.  125 Garder Road – compliance with extension of approval.
     11. It is found that, at its May 5th meeting, the commission voted to convene in executive session to “discuss legal matter[s] on general zoning enforcement” (the “executive session”).  It is found that the commission convened in executive session for approximately fifty minutes.  It is found that, after the commission reconvened its regular meeting, it voted to move item #22 on the agenda to item #15.  It is further found that the commission, under item #15 on the agenda, without discussion, voted to extend the complainant’s permit to March 2013, and also to require that, prior to the commencement of any additional work at the site, the complainant post a bond in the amount of $100,000.  It is found that the complainant and the respondents disagree as to whether, at the May 5th meeting, the commission voted to add new terms and conditions to the permit, or whether it voted to simply enforce the conditions that existed on the original permit.
     12. By letter of complaint, dated May 31, 2011 and filed June 2, 2011, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by convening in executive session during the commission’s May 5th meeting for purposes not permitted under the Act.  The complainant further alleged that the respondents improperly allowed Steven Vavrek, the first selectman; Karen Martin, an alternate commission member; and Joseph Chapman, the zoning enforcement officer; to attend the executive session, in violation of §1-231(a), G.S.
     13. 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….” 

     14. Section 1-200(6), G.S., provides, in relevant part:
          “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 members’ conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled…(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.  (Emphasis added).
     15. In a sworn affidavit, the chairman of the commission testified, that during the executive session, discussion of the following matters occurred:
          (a) how to react to Judge Owens’ decision;
          (b) how to respond to… [the] demand that the respondent hold a hearing and grant the complainant a permit extension;
          (c) how to respond to…[the] demand that no new conditions be imposed on the complainant’s permit…and what a new condition would be…;
          (d) how to address the complainant’s non-compliance with its original permit;  and
          (e) what zoning enforcement options were available to the respondent in light of the permit violations. 
     16. The respondents argue that the discussion with counsel of the matters described in paragraph 15, above, was permitted in executive session, pursuant to §§52-146r and 1-200(6)(B), G.S.  The respondents further claim that the first selectman did not attend the executive session, and that the attendance of the other two individuals in the executive session was permitted under §1-231(a), G.S.
     17. Section 52-146r, G.S., prohibits disclosure of confidential communications between a government attorney and a public official or employee of a public agency and provides, in relevant part, that:

          [i]n any civil or criminal case or proceeding or in any legislative or administrative proceeding, all confidential communications shall be privileged and a government attorney shall not disclose any such communications unless an authorized representative of the public agency consents to waive the privilege and allow such disclosure.
     18. However, §1-231(b), G.S., provides that:
          An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200. 
     19. An established principle of statutory construction is that “specific terms covering the given subject matter will prevail over general language of the same or another statute which might otherwise prove controlling . . . The provisions of one statute which specifically focus on a particular problem will always, in the absence of express contrary legislative intent, be held to prevail over provisions of a different statute more general in its coverage." (Citations omitted; internal quotation marks omitted.) Tappin v. Homecomings Financial Network, Inc., 265 Conn. 741, 760, 830 A.2d 711 (2003), citing Moscone v. Manson, 185 Conn. 124, 133-34, 440 A.2d 848 (1981).
     20. Section 52-146r, G.S., is an evidentiary statute which prohibits governmental attorneys from disclosing privileged communications in civil, criminal, legislative or administrative proceedings.  On the other hand, it is found that the language in §1-231(b), G.S., specifically covers the issue presented in this case, which is whether a multimember public agency may convene in executive session to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship.  Therefore, it is concluded that §1-231(b), G.S., is controlling. 
     21. Section 1-231(b), G.S., specifically precludes a multimember public agency from convening in executive session to receive oral communications that would otherwise be privileged by the attorney-client relationship unless the executive session is for one of the five explicitly permitted purposes found in subdivision (6) of section 1-200, G.S. See, e.g., State of Connecticut Citizen’s Ethics Advisory Board v. Freedom of Information Commision, Superior Court, Judicial District of New Britain, Docket No. CV-106007661 (July 15, 2011, Cohn, J); Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, Superior Court, Judicial District of New Britain, Docket No. CV 106003500 (June 24, 2011, Owens, JTR), appealed on other grounds, Chairperson, Connecticut Medical Examining Board et al. v. Freedom of Information Commission, et al., SC 19055 (appeal pending);  Board of Public Safety, City of Torrington v. Freedom of Information Commission, Superior Court, Judicial District of New Britain, Docket No. CV 010506448 (November 20, 2001, Owens, J.).   This Commission has held, however, that it is permissible to convene in executive session to discuss the contents of records subject to the attorney-client privilege pursuant to §§1-200(6)(E) and 1-210(b)(10), G.S.  See, e.g., Robert Fromer v. Michael Sinko, Chairman, Hospital Advisory Committee, Town of Preston, et al, Docket #FIC 2006-414 (August 8, 2007); Daniel M. McCabe v. Zoning Enforcement Officer, Land Use Bureau, City of Stamford, Docket  #FIC 2004-134 (September 22, 2004).
     22.  However, it is found, in the present case, that the commission did not convene in executive session to discuss the contents of records subject to the attorney-client privilege, pursuant to §§1-200(6)(E) and 1-210(b)(10), G.S.  Accordingly, it is found that the discussions described in paragraph 15, above, were not permitted in executive session, pursuant to §§1-200(6)(E) and 1-210(b)(10), or 52-146r, G.S.

     23. Alternatively, the respondents contend that the commission convened in executive session to discuss strategy with respect to a pending claim or pending litigation, pursuant to §1-200(6)(B), G.S.
     24. “Pending claim” is defined in §1-200(8), G.S., as “a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.” 
     25. “Pending litigation” is defined in §1-200(9), G.S., as “(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.”
     26. The respondents argue that the discussion, described in paragraph 15(a), above, of Judge Owens’ decision, was permitted because such discussion constituted strategy and negotiation with respect to pending litigation, pursuant to §§1-200(6)(B) and 1-200(9)(B), G.S.   Although the respondents assert that the parties’ legal rights were “not finally adjudicated,” it is found that the parties’ rights insofar as they were at issue before Judge Owens were finally adjudicated, and it is undisputed that the respondent commission did not appeal Judge Owens’ decision.  See Ansonia Library Board of Directors v. Freedom of Information Commission, et al., 42 Conn. Supp. 84, 89 (1991).  Moreover, it is found that the record contains no evidence of “the service of a complaint” against the respondents, a required element in §1-200(9)(B), G.S.  Accordingly, it is found that the discussion of Judge Owens’ decision was not permitted in executive session pursuant to §§1-200(6)(B) and 1-200(9)(B), G.S.  
     27. Based upon the foregoing, it is concluded that the respondents violated §1-225(a), G.S., when the commission discussed, in executive session, the matter described in paragraph 15(a), above.
     28. Next, the respondents argue that the discussion, described in paragraphs 15(b) and 15(c), above, of the letters described in paragraphs 8 and 9, above, was permitted because the letters constitute both a “pending claim,” and “pending litigation,” within the meaning of §§1-200(8) and 1-200(9)(A), G.S.  The respondents characterize the letters as “threatening” and “demanding,” and, in their brief, they attach great significance to the inclusion, in the October 1st letter, of the statement that “no new conditions should attach [to the permit].”  However, it is found that, although such letters contain a request for action from the respondents, they do not contain a “demand for legal relief…stating the intention to institute an action in an appropriate forum, or before a court, if such legal relief is not granted,” as required by §§1-200(8) and 1-200(9)(A), G.S.   See Salvatore Gabriele v. Daniel Young, Chairman, Board of Ethics, City of Stamford, et al., Docket #FIC 2011-293 (March 28, 2011) (motion to limit scope of hearing not a “pending claim” because it does not set forth a demand for legal relief…stating the intention to institute an action…”).  See also Friends of Open Space v. Conservation Commission, Town of Fairfield, Docket #FIC 2008-048 (January 14, 2009);  Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, supra, at 13-14; John Spang, Jr. v. Board of Education, Norwich Public Schools, Docket #FIC 2008-286 (October 22, 2008).  In other words, it is found that such letters were post-litigation requests by counsel to issue the permit extension, which, at the time they were made, were unaccompanied by a statement of intent to institute any further legal action if the requests were denied.  Accordingly, it is found that the letters, described in paragraphs 8 and 9, above, do not constitute a “pending claim” or “pending litigation” and therefore do not form the basis for an executive session under §§1-200(6)(B), 1-200(8) or 1-200(9), G.S.
     29. Based upon the cases cited in paragraph 28, above, it is concluded that the phrase “the intention to institute an action” modifies both the phrase “demand for legal relief” and “asserts a legal right,” in §§1-200(8) and 1-200(9), G.S.  Thus, it is concluded that the respondents violated §1-225(a), G.S., when the commission discussed, in executive session, the matters described in paragraphs 15(b) and 15(c), above.
     30. Next, the respondents argue that the discussions, described in paragraphs 15(d) and 15(e), above, were permissible because they constituted strategy and negotiation with respect to pending litigation, pursuant to §§1-200(6)(B) and 1-200(9)(C), G.S. 
     31. It is found that the respondents offered no testimony, at the hearing in this matter, regarding how, or whether, the nature of the discussions described in paragraph 15(d), above, were different from the nature of the discussions described in paragraph 15(e), above.  In addition, it is not clear, on the face of the affidavit, described in paragraph 15, above, whether the discussions, described in paragraphs 15(d) and 15(e), above, pertained to how the commission, within its own authority and under its own zoning regulations, might address the complainant’s non-compliance, or whether such discussions pertained to consideration of bringing an action against the complainant in court or in another forum.  However, it is found that, based upon the testimony of the chairman of the commission, at the hearing in this matter, that the commission members did not discuss, in the executive session, a “zoning enforcement action” against the complainant.  Based upon the facts of this case, it is found that such statement by the chairman may be fairly interpreted to mean that the commission did not discuss, in the executive session, bringing an action in court or in another forum, against the complainant.  To the extent that this testimony by the chairman contradicts the statement he made in his affidavit, described in paragraph 15(e), above, it is found that the testimony at the hearing is more credible.     
     32. Accordingly, it is found that the respondents cannot rely on §1-200(6)(B), G.S., as the basis for their discussions in executive session of the matters described in paragraph 15(e), above.
     33. Moreover, even if such discussions, described in paragraph 31, above, pertained to how the commission, within its own authority and under its own zoning regulations,  might address the complainant’s non-compliance with the permit, it is found that the provision in 1-200(6)(B), G.S., for discussion of strategy and negotiations with respect to pending litigation also would not apply to such discussions, as the commission, in that instance, would be acting in its capacity as a regulatory body, and thus would not be a party to any pending litigation, as that term is used in the statute.
  
     34. Therefore, based upon the foregoing, it is found that the respondents’ discussions, described in paragraphs 15(d) or 15(e), above, do not constitute strategy and negotiation with respect to pending litigation, pursuant to §§1-200(6)(B) and 1-200(9)(C), G.S. 
     35. Based upon the foregoing, it is concluded that the respondents violated §1-225(a), G.S., when the commission discussed, in executive session, the matters described in paragraphs 15(d) and 15(e) , above.
     36. With regard to the allegation that the commission improperly allowed Steven Vavrek, the first selectman; Karen Martin, an alternate commission member; and Joseph Chapman, the zoning enforcement officer; to attend the executive session, it is found that, based upon the foregoing conclusion that the executive session was held for an improper purpose, the Commission need not consider the additional claim that certain individuals were improperly present at such impermissible executive session.
     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 provisions of §§1-225(a) and 1-231(a), G.S.
     2. Forthwith, the respondents shall create minutes of the May 5 executive session, to include a detailed account of the discussions that took place, and a description of who was in attendance, and further, shall forthwith post such minutes with the town clerk and provide a copy, free of charge, to the complainant.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 28, 2013.
__________________________
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:
Handsome, Inc.
c/o Ian Cole, Esq.
Cohen & Thomas
315 Main Street
Derby, CT  06418
Planning and Zoning Commission,
Town of Monroe; and Town of
Monroe
c/oAssaf Ze’ev Ben-Atar, Esq.
Pullman & Comley, LLC
850 Main Street
P.O. Box 7006
Bridgeport, CT  06601-7006
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-284/FD/cac/3/28/2013