02/08/95 RTM MEMBER RICHARD HOLLERAN WAS RIGHT

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Richard Holleran,

Complainant

against Docket #FIC 94-80

Greenwich First Selectman and Greenwich
Department of Public Works,

Respondents February 8, 1995

The above-captioned matter was heard as a contested case on July 21, 1994, at which time 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 1-18a(a), G.S.

2. By letter of complaint filed March 18, 1994, the complainant appealed to the Commission, alleging that he was denied access to a meeting on February 18, 1994 at which town business was discussed.

3. It is found that the town of Greenwich is in the process of redevelopment plans for a certain parcel land known as the Cos Cob Power Plant.

4. It is found that the commissioner of the respondent department of public works solicited requests for proposals for a site plan for the power plant.

5. It is found that, after numerous proposals were received, the commissioner delegated the responsibility for developing a "short list" of applicants to a committee of three individuals, consisting of a selectman and two other town residents.

6. It is found that the committee developed such a list, was enlarged to five members, and set a date to interview the five finalist applicants.

7. It is found that the committee met on February 18, 1994 to interview the five finalists separately but sequentially.

Docket #FIC 94-80 Page 2

8. It is found that each interview consisted of the same questions put to the applicants, concerning their proposals, and that their answers were scored on a scale of one to ten.

9. It is found that the highest scoring applicant was then communicated to the commissioner of public works, who met with and ultimately executed a contract with that applicant.

10. It is found that the February 18, 1994 interviews were not open to the public generally or to the complainant, who also sought to attend in his capacity as a member of the subcommittee of the planning and zoning committee of the representative town meeting ("RTM") that is charged with collecting information about the Cos Cob power plant site.

11. The complainant maintains that he was improperly denied access to the meeting, and that without access he is unable to discharge his responsibilities as a citizen and member of the RTM.

12. The respondents maintain that the meeting was a staff or administrative meeting within the meaning of 1-18a(b), G.S., and that conducting the interviews in public would result in the disclosure of documents exempt under 1-19(b)(7), G.S.

13. The respondents further maintain that conducting the interviews in public would have been unfairly prejudicial to the applicant then being interviewed, and unfairly advantageous to other applicants who could have attended, because all the questions that were asked of the applicants were the same, and because applicants would have had to reveal whatever plans they necessarily believed gave them a competitive advantage.

14. Section 1-18a(b), G.S. provides that an administrative or staff meeting of a single-member public agency is not a "meeting" within the meaning of 1-18a(b) and therefore is not subject to the requirements of the FOI Act.

15. The respondents maintain that the February 18, 1994 meeting was an administrative or staff meeting within the meaning of 1-18a(b), G.S., because the commissioner of public works himself would ordinarily conduct such interviews with the assistance of a staff member.

16. It is found that the commissioner of public works delegated the responsibility for interviewing and scoring the applicant engineering/architectural firms to the committee.

17. It is also found that the first member of the committee (a selectman) was selected for his architectural knowledge and background, not for his administrative abilities.

Docket #FIC 94-80 Page 3

18. It is found that the respondents failed to prove either that the selection of an architectural/engineering proposal is an administrative function, or that the members of the interview committee were staff members of the respondents.

19. It is therefore found that the respondents failed to prove either that meeting with applicants to evaluate their proposals is an administrative task within the meaning of 1-18a(b), G.S., or that the previous participation of a staff member at such an interview would convert it into a staff meeting within the meaning of 1-18a(b), G.S.

20. Section 1-18a(a) provides in relevant part that the term "public agency" means:

any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official .... [Emphasis added].

21. It is therefore concluded that the respondents' interview committee is a public agency within the meaning of 1-18a(a), G.S.

22. The respondents also maintain that the proposals submitted were feasibility studies within the meaning of 1-19(b)(7), G.S., which are permissibly exempt from disclosure, and that 1-19(b), G.S., generally provides that nothing in the Freedom of Information Act--such as requiring a meeting to be open to the public--shall be construed as requiring the disclosure of documents exempt by 1-19(b)(7), G.S.

23. Section 1-19(b)(7), G.S., provides that disclosure is not required of:

the contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned, provided the law of eminent domain shall not be affected by this provision ....

Docket #FIC 94-80 Page 4

24. Section 1-18a(e)(5), 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: (5) discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.

25. It is found that proposals were sought from engineers and architects.

26. It is found that the proposals generally concerned the design of affordable housing and park space at the site of the former Cos Cob Power Plant.

27. It is found that the proposals addressed road design and construction; a plan for marina facilities; 23 units of affordable housing, including plans to show sidewalks, driveway and parking, as well as the location of the units themselves; plans to grade, topsoil, seed and landscape open space; and a method for screening off nearby railroad and electrical facilities.

28. It is concluded that the proposals submitted were engineering or feasibility estimates and evaluations made for the respondent relative to a prospective public construction contracts

29. It is therefore concluded that the proposals were exempt from disclosure pursuant to 1-19(b)(7), G.S.

30. It is therefore concluded that the respondents' committee could have permissibly convened in executive session to discuss the contents of the proposals.

31. It is also found, however, that the respondents' committee did not file a notice of the meeting to conduct interviews, and did not vote to convene in executive session in accordance with the procedures described in 1-21(a), G.S.

32. It is therefore concluded that the respondents' committee violated 1-21(a) by failing to file a notice of the committee meeting to conduct interviews, and by failing to vote to convene in executive session and to state a reason for so convening.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

Docket #FIC 94-80 Page 5

1. Henceforth the respondents shall strictly comply with the requirements of 1-18a(e) and 1-21(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 1995.


Debra L. Rembowski
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:
RICHARD HOLLERAN
66 Milbank Avenue
Greenwich, CT 06830

GREENWICH FIRST SELECTMAN AND GREENWICH DEPARTMENT OF PUBLIC WORKS
c/o John K. Wetmore, Esq.
Assistant Town Attorney
101 Field Point Road
P.O. Box 2540
Greenwich, CT 06836-2540


Debra L. Rembowski
Clerk of the Commission