May 13, 2002

Via Hand Delivery

Connecticut Freedom of Information Commission

18-20 Trinity Street

Hartford, CT 06106

Re:       Town of Greenwich Planning and Zoning Commission:
Complaint Regarding FOIA Violation 

To The Freedom Of Information Commission:

On behalf of our clients, the Concerned Homeowners of Greenwich (the “Homeowners”), we file this letter of complaint, under Conn. Gen. Stat. § 1-206(b), against he Greenwich Planning and Zoning Commission (“Commission”).  This complaint is based on our belief that the Commission violated the Freedom of Information Act (“FOIA”)in and following its executive session on April 23, 2002, per the Agenda attached as Exhibit A.  This letter is written to report and seek redress for such violations in the form of declaratory relief that the actions taken are invalid ab initio, and of no force and effect.

A.            BACKGROUND

At issue is an amendment to the Greenwich Zoning Regulations (the “Regulations”) that the Commission adopted at a regular meeting on November 17, 1998, which modified § 6-205 of the Regulations concerning the allowed floor area ratios in a number of residential zoning districts.  Subsequently, the Homeowners, and various individual citizens of Greenwich appealed the Commission’s action to the Connecticut Superior Court pursuant to Conn. Gen. Stat. §§ 8-8 and 8-10 seeking to invalidate the amendment to § 6-205 of the Regulations. 

On April 19, 2002 the Superior Court ruled in favor of the Homeowner’s holding that the Commission had failed to provide proper notice of the public hearing at which the amendment was adopted.  The court declared the amended § 6-205 of the Regulation by the Commission to be null and void.  See Campformio v. Greenwich Planning and Zoning Commission (attached as Exhibit A). 

On May 7, 2002 the Commission held a public meeting at which it sought to re-enact the amendment to § 6-205.

B.            COMMISSION MEETING – APRIL 23, 2002

The Commission held one of its regularly scheduled meetings on April 23, 2002.  The notice of the meeting stated that its purpose was for “Public Information and Discussion on the 2002 Open Space Plan”.  Included on the “Final Agenda” for that meeting, however, was an “Executive Session on Pending Litigation or Personnel Matters.”  See Exhibit A.  The Commission staff, as per its custom, prepared minutes (the “Minutes”) of the meeting after it was concluded.  The Homeowners obtained a copy from the Commission and attach them at Exhibit C.  Upon information and belief, these minutes were reviewed and approved by the Commission on May 7, 2002.  In any event, the minutes have been certified as “true and accurate” by the Town Planner.  The Minutes state that “An Executive Session was Held on Pending Litigation” and simply set  forth details of the motion to enter into the executive session and vote to adjourn the executive session.  The Minutes do not give any indication as to the subject matter discussed or actions taken during this executive session.  The Homeowners, by their undersigned counsel, wrote to the Commission on May 7, 2002 (Exhibit D) to obtain any and all information regarding the executive session.  The Minutes are all that have been provided.

Notwithstanding the paucity of records, in both its notice, agenda and also its Minutes, the Commission publicized, and then held the May 7, 2002 meeting for the purpose of enacting a “new” regulation that is virtually identical to the one invalidated by he Court on April 19, 2002.

The Homeowners respectfully submit that the Commission in executive session on April 23, 2002 must have acted improperly in one or more of the following ways: (1) It discussed the court decision invalidating the amendment to § 6-205 of the Regulations; (2) It failed to reasonably apprise the public of the topics to be discussed at the executive session; (3) It failed to have a motion or vote to add the topic discussed in the executive session to the agenda; (4) It determined that, in response to the Court’s decision, the Commission would seek to re-enact the invalidated amendment to § 6-205 as a “new” amendment; (5) It performed a legislative function that should properly have been open to the public by determining that the previous amendment to § 6-205 was proper; (6) It decided to hold a public hearing to re-enact the amendment; (7) It failed to vote on the decisions to (i) re-enact the amendment to § 6-205, (ii)  determine that the amendment to § 6-205 was proper, and (iii) hold a pubic hearing to re-enact the amendment; or, voted and failed to properly reduce the vote to writing for each decision made; (8) It failed to discuss personnel items in the executive session as listed on the agenda; and (9) It failed to keep and maintain a record of the executive session. 

Under Conn. Gen. Stat. 1-200(6) all of the listed actions are not proper subjects of, or actions that may be taken during an executive session.  The following is a brief explanation of the Homeowners’ position as to each of these violations:

(1)        The Commission Discussed The Court’s Decision To Invalidate The Amendment To § 6-205 Of The Regulations And Possible Commission Action In Response.

It is obvious that the Commission discussed the Court’s decision and determined a response during the April 23, 2002 executive session, because the Commission published on April 25, 2002 the notice to hold a public hearing on May 7, 2002 to amend § 6-205 of the Regulations.  See Exhibits E and F.  The date of publication was two days following the April 23, 2002 meeting.  There were no other meetings held by the Commission between the date the Court’s published their decision April 19, 2002 and the date of publication of the May 7^th meeting, except for the April 23^rd meeting at issue.  Therefore, any decisions made by the Commission regarding the Court’s decision and proposed re-enactment of the amendment to the Regulations took place in executive session on April 23^rd or outside of a scheduled Commission meeting altogether.  In either scenario, the Commission acted improperly.

(2)        The Commission Failed To Reasonably Apprise The Public Of The Topic Of The Executive Session Convened At The April 23^rd Meeting.

The agenda for the April 23^rd meeting stated that an executive session would be held “on pending litigation or personnel matters.”  The agenda contained no reference to the appeal taken by the Homeowners, to the court’s decision in that appeal, or to the amendment to § 6-205 that we believe the Commission discussed.  This failure is a violation of Conn. Gen. Stat. § 1-200(6). 

The Freedom of Information Commission (the “FOIC”) has previously found under similar circumstances that failing to reference the application or lawsuit or any matter that could reasonably apprise the complainants or public of the topic of an executive session in the agenda constitutes a secret or unnoticed meeting within the meaning of Conn. Gen. Stat. § 1-21i(b) (recodified at § 1-206).  See Williams v. Enfield Planning and Zoning Commission, 1989 FIC 88-472 (July 12, 1989).  In Williams the agenda stated that the commission would hold an executive session for “Pending Litigation and Personnel Items”.  Therefore, the Commission in the present case should have included the topic of discussion in executive session.  The blanket statement of “pending litigation and personnel matters” is not sufficient notice to comply with FOIA.

(3)        The Commission Failed To Have A Motion Or Vote To Add The Topics Discussed In Executive Session To The Agenda.

At no time did the Commission have a public vote or move to discuss the amendment to § 6-205 of the Regulations.  This was a violation of Conn. Gen. Stat. § 1-206(b).  In order to properly discuss any item in executive session the Commission should have voted or moved to enter into such discussion.  The minutes of the April 23^rd meeting do not contain any indication that the Commission undertook the necessary vote or motion.  Therefore, the public was not apprised of the content of the executive session discussions, which amounts to a secret or unnoticed meeting.

(4)        The Commission Determined In Response To The Court’s Decision That A Public Hearing Would Be Held To Attempt To Re-Enact The Amendment To § 6-205

The minutes for the April 23^rd meeting do not indicate that the Commission reached a consensus that an appropriate response to the Court’s decision to invalidate the amendment would be to re-enact the same amendment by following the proper notice procedures.  However, at some point the Commission made the decision to move forward with the process of holding a public hearing to re-enact the amendment.  This decision to re-enact the amendment should have been open to the public and was in violation of Conn. Gen. Stat.§§ 1-200(6) and 1-206(b).  While the executive session is the appropriate forum to discuss “Strategy or Negotiation with Respect to Pending Claims or Pending Litigation” it is not the appropriate forum to decide a course of action following an adverse ruling.  This rule follows the FIC’s holding in Williams, supra, where the commission, in executive session to discuss pending litigation, authorized their special counsel to execute a settlement agreement.  The FIC found the commission’s actions in this situation to be a secret or unnoticed meeting.  Similarly, the Commission in this case took actions that were outside the scope of executive session and during an improperly noticed meeting.

(5)        The Commission Performed A Legislative Function During Executive Session By Determining The Previously Enacted Amendment To § 6-205 Was Proper.

The Commission reached a conclusion that a public hearing should be held to re-enact the “new” amendment to § 6-205.  This decision implies that the Commission determined that the amendment to the Regulations was a proper means for accomplishing their original goals in enacting the amendment.  A decision related to the appropriateness of amendments to a town’s zoning regulations falls squarely within a zoning commission’s legislative function.  Such legislative function must be conducted in a public hearing and violates Conn. Gen. Stat. § 1-200(6) as being outside the scope of an executive session.

The Commission may have relied on the findings during the initial public hearings and discussions on the amendment to § 6-205 in making their determination that the “new” amendment remained appropriate.  However, even that determination the Commission is beyond the scope of an executive session as it is a legislative finding requiring public notice and opportunity for input.  Additionally, the Commission should have questioned the appropriateness of the amendment because the appeal by Homeowners to the Court, while granted on procedural grounds, included a claim that the amendment was unconstitutional.

(6)        The Commission Decided In Executive Session To Hold A Public Hearing To Re-Enact The Amendment To § 6-205 Of The Regulations.

The Commission decided to give notice of, and schedule a public hearing to re-enact the amendment during its executive session.  This is a violation of Conn. Gen. Stat. §§ 1-200(6) and 1-206(b).  A vote to hold a public hearing is appropriate during a public meeting, not during executive session.  There was no vote taken during the public portion of the April 23^rd meeting to hold a hearing on the amendment to § 6-205 on May 7^th.  Therefore, the Commission acted outside to proper scope of an executive session and held an improperly noticed or secret meeting which the public was denied access to.

(7)        The Commission Failed To Vote On The Decisions To (i) Re-Enact The Amendment To § 6-205, (ii) Determine That The Amendment To § 6-205 Was Proper And (iii) To Hold A Public Hearing To Re-Enact The Amendment To § 6-205 During The Executive Session On April 23^rd.

The Commission reached a series of conclusions regarding the amendment to § 6-205 of the Regulations during their April 23^rd executive session.  However, the minutes of the April 23^rd meeting make no reference to any votes taken, or decisions made by the Commission during the executive session.  The Commissions actions were in violation of Conn. Gen. Stat. § 1-206(b) and (c).  The Commission did not apprise the public that they would make decisions regarding the amendment during the executive session.  Therefore, the public was improperly excluded from the meeting.

In the event that the Commission did vote on the various conclusions they reached, then they did not properly reduce those votes to writing and to record those votes in the meeting minutes as required by Conn. Gen. Stat. § 1-225(a).

Lastly, if the Commission did not vote or reach a consensus on the decisions that were made, in executive session or otherwise, but instead the actions taken by the Commission were solely determined by the chairperson of the Commission, then those actions are invalid.  “In no explicit terms is the chair [person] authorized to act on behalf of the board as to any substantive matter … the power to decide the issues that are the subject matter of hearings can in no way be implied from the power to oversee the procedural aspects of those hearings.”  Grasso v. Zoning Board of Appeals, 2002 Conn. App. LEXIS 195 at *9-10 (April 16, 2002).

(8)        The Commission Failed To Discuss “Personnel Items” In Its Executive Session As Stated On The Agenda For The April 23^rd Meeting.

The minutes for the April 23^rd meeting do not list the personnel items that the Commission discussed as part of their executive session.  Since there is no evidence that the Commission discussed personnel items, the Commission erroneously apprised the public that personnel items would be taken up in executive session.  Therefore, the Commission failed to state its actual purpose for convening an executive session in violation of Conn. Gen. Stat. § 1-206(c).

(9)        The Commission Failed To Keep And Maintain A Record Of The Executive Session.

If the above stated actions of the Commission are found to be true, then the Commission failed to keep and maintain a meaningful record of either the subject matter or action taken in its unnoticed executive session on April 23, 2002.  In Williams, supra, the FIC found the Commission had failed to keep a meaningful record where actions taken by the commission were not recorded and the agenda failed to accurately state the subject matter of the executive session.

The Homeowners submit that at the Greenwich Planning and Zoning Commission’s April 23, 2002 meeting, the Commission discussed during an executive session the re-enactment of the amendment to § 6-205 of the Greenwich Zoning Regulations and decided on a course of action with regard to the amendment.  This is not within the scope of executive session under Conn. Gen. Stat. §§ 1-200(6).  Furthermore, the Commission did not properly apprise the public of the subject matter of the executive session in violation of Conn. Gen. Stat. § 1-206(c), thereby denying the public access to discussions properly belonging in the public forum in violation of Conn. Gen. Stat. § 1-206(b).  We therefore contend that the Commission violated the Freedom of Information Act, and respectfully request that the Freedom of Information Commission investigate the discussions that took place during the executive session.  If there is a violation found, then any actions taken by the Commission during the executive session should be null and void.

Very truly yours,

Robert J. Sitkowski

Attachments