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Final Decision FIC2012-504
In the Matter of a Complaint by
FINAL DECISION
David Godbout,
     Complainant
     against
Docket #FIC 2012-504
Board of Assessment Appeals,
Town of East Lyme; and
Town of East Lyme,
     Respondents
August 28, 2013

     The above-captioned matter was heard as a contested case on June 11 and July 8, 2013, at which times the complainant and the 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 letter of complaint filed September 18, 2012, the complainant appealed to the Commission, alleging that the respondent Board of Assessment Appeals violated the Freedom of Information (“FOI”) Act by not permitting him or others with assessment appeals to view, listen, observe and attend the hearings of other persons appealing their motor vehicle tax assessments.   
     3.  By letter filed May 15, 2013, the complainant requested that the Commission subpoena, as a fact witness, Attorney Robert Reardon, Jr., who the complainant claimed was present at the time of the respondents’ alleged violation of the FOI Act. The hearing officer denied the request without prejudice until the parties had an opportunity to be heard at the scheduled hearing date, and the hearing officer determined whether such testimony was necessary in addition to the testimony of such witnesses, including the complainant, who would be present at the scheduled hearing. The complainant renewed his request for a subpoena on May 21 and May 24, 2013, both of which requests were similarly denied. The complainant further renewed the request at the hearing, and the parties having had the opportunity to be heard on the request, the request was ultimately denied with prejudice.
     4.  On May 23, 2013, the respondents requested that the June 11, 2013 hearing on this matter be postponed because of the unavailability of a fact witness, the respondent Board’s recording secretary. That request was also denied without prejudice to renew the request if the hearing officer determined, at the June 11 hearing, that there remained disputes as to material facts. Following the testimony of the complainant and two members of the respondent Board, the June hearing was indeed, at the request of the respondents, subsequently continued to July 8, 2013 to permit the recording secretary to testify.
     5.  By letter dated May 30, 2013, Attorney Reardon, the individual whom the complainant had sought to subpoena, wrote the hearing officer ex parte because he “thought it would be helpful if the Commission was aware of the limited knowledge I have [of] the mater which I am informed is the basis of the pending complaint.” The letter, which essentially protested the subpoena, was marked for identification purposes only and was not considered by the hearing officer in either rendering his proposed decision or in considering whether to issue a subpoena to Attorney Reardon. As described in paragraph 3, above, the hearing officer had already three times denied the request for a Commission-issued subpoena.
     6.  By email on Friday June 7, 2013, the complainant requested that the June 11, 2013 hearing be postponed because he had discovered “secret policies” employed by the Commission. The so-called “secret policies,” which were attached to the request for postponement, are essentially a script that may be used by a Commissioner or staff attorney to introduce a case at the commencement of a contested case hearing, together with the text of the oath for witnesses and an affirmation for witnesses. The documents had been provided to the complainant by the Commission in response to an FOI request by the complainant. This request for postponement was also denied, there having been no showing that the complainant’s discovery of these purported “secret policies” required a postponement of the hearing. The hearing officer advised the complainant that any alleged defects in the evidentiary hearing could be raised before the FOI Commission when it considered this proposed decision, or by a court on appeal.
     7.  By letter filed on June 8, 2013, the complainant requested that the Commission subpoena another lawyer, this one employed in the law offices of the respondents’ counsel, who had informed Attorney Reardon of the complainant’s initial request for a subpoena. The grounds for the subpoena were alleged “witness tampering.” Given that the complainant offered no reason for this subpoena other than his speculation that Attorney Reardon had been intimidated, and that the decision not to subpoena Attorney Reardon was made before Attorney Reardon inappropriately wrote to the hearing officer, and that there was no suggestion that Attorney Reardon sought to avoid being subpoenaed for any reason other than his lack of anything to add to the proceedings, and that in the opinion of the hearing officer Attorney Reardon’s testimony was unnecessary, this request for a subpoena was also denied.
     8.  Section 1-200(5), G.S., provides in relevant part:
     “Meeting” means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.
     9.  Section 1-225, G.S., provides in relevant part:
     (a)  The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. 
     10. Section 1-200(6), G.S., provides:
     “Executive sessions” means a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (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;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the 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; and  (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.
     11. It is found that the respondents met on August 15, 2012 for the purpose of hearing motor vehicle tax appeals, and that such was a meeting within the meaning of §1-200(5), G.S.
     12. The respondents do not contend, and it is further found, that the hearing of motor vehicle tax appeals does not establish a permissible reason to convene in executive session pursuant to §1-200(6), G.S.
     13. It is found that the complainant arrived at the offices of the respondents on September 15, 2012 to present his appeal of his motor vehicle tax assessment.
     14. It is found that other individuals seeking to appeal their motor vehicle tax assessments were waiting in the hallway outside of the conference room where the respondent Board conducted its appeals.
     15. It is found that some of the proceedings within the hearing room may have been visible through a glass wall, but that the proceedings were not audible in the hallway outside the hearing room, and that the closed door signified to both the respondents and the public that the proceedings were closed to persons not directly involved in particular assessment appeals.
     16. It is found that the hearing room is large enough to contain waiting petitioners or interested members of the public, and that there were empty chairs near the door inside the hearing room, where such people could sit.
     17. It is found that it is the practice of the Board to call individuals separately into the hearing room to present their assessment appeals, and that the public is expected to wait in the area outside of the hearing room, rather than inside where they could see and hear what was going on.
     18. It is found that the door to the conference room was closed, and that the respondent Board was conducting an assessment hearing at the time the complainant arrived.
    19. It is found that the complainant entered the hearing room uninvited and, upon being told by the recording secretary that other individuals were waiting in the hallway, exited the hearing room, as he understood that was what he was being asked to do.
     20. It is found that the door was closed behind the complainant.
     21. It is found that the complainant re-entered the room during a break between assessment appeals when the door was briefly opened by an exiting petitioner who had concluded presenting his assessment appeal, and that the complainant remained in the hearing room without objection by the respondents throughout the hearings that followed.
     22. The complainant claims that he was barred from the hearing room by the recording secretary.
     23. It is found that the recording secretary told the complainant to wait his turn, not expressly that he was required to leave the room. At the same time, it is also found that the recording secretary communicated that the complainant was interrupting, and that he was not welcome. It is found that, in fact, the complainant was not interrupting, that he merely wished to observe the respondents conducting official business, that he had a right to do so, and he should have been welcome to attend. Had the complainant truly been invited to stay, it is reasonable to assume that either some member of the board of the recording secretary herself would have communicated to him that he did not have to leave.
     24. The respondents claim that they did not violate the FOI Act because the complainant was ultimately permitted to remain, and because no member of the respondent board directed the complainant to leave.
     25. The respondents also maintain that most claimants have the good manners to remain outside during the hearings of other individuals, and do not need to be told not to enter the room.
     26. The respondents further maintain that a closed door is necessary for quiet in order for the recording secretary to accurately record the proceedings.
     27. It is found that the practice of the respondent of calling claimants into the room individually, of conducting their hearings behind a closed door, and of communicating to the public, as they did to the complainant, that the public is not welcome to intrude, even if not physically barred from the door, has the effect of closing the meeting to the public.
     28. It is therefore concluded that the respondents violated §1-225(a), G.S., as alleged.

     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 §1-225, G.S., in conducting hearings and meetings concerning tax appeals.
     2.  The respondents shall forthwith contact Commission staff to arrange for an educational workshop concerning the requirements of the FOI Act. 
Approved by Order of the Freedom of Information Commission at its regular meeting of August 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:
David Godbout
15 Cardinal Road
East Lyme, CT  06333
Board of Assessment Appeals, Town of
East Lyme; and Town of East Lyme
c/o Mark S. Zamarka, Esq.
Waller, Smith & Palmer, P.C.
52 Eugene O’Neill Drive
New London, CT  06320
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2012-504/FD/cac/8/28//2013