FOI Officer: Illegal Meeting Held, But Not Done in Bad Faith

According to a report in the New London Day, a state Freedom of Information Commission hearing officer has found the Stonington Board of Selectmen held an illegal emergency meeting on Dec. 3, 2012, to accept open space plans for a controversial Pawcatuck condominium development. The town argued the meeting was an emergency one. But, The Day reported, Hearing Officer Lisa Fein Seigel found the meeting was not an emergency as defined by state law, but opted not to declare the acceptance of the plan "null and void."

The Day, which had filed a complaint with the commission over the meeting, had asked the decision be vacated, the report read.

The Day said Seigel found the Board’s action “essentially ministerial” and not done in bad faith.

When the full FOI Commission meets later this month, it will decide whether or not to accept the officer’s recommendations. The Day reported that the Commission had previously found the Town to have violated FOI law on two other occasions over the past 18 months.

Open meeting laws allow for emergency meetings – ones not posted – in “extraordinary circumstances” only.

The background, according to The Day: Once the town’s Planning and Zoning Commission blessed the then-controversial development by Cherenzia Excavation of Pawcatuck on Mary Hall Road; foes appealed. The Day reported that, as part of a settlement, Cherenzia had to have the town accept its open space plans and file them in Town Hall within 90 days with two extensions granted. Siegel said the town didn’t realize until the morning of Dec. 3 that the deadline was that day and called an emergency meeting. The Day reported that records

Show that Cherenzia filed the plans one day after the deadline expired.

Meanwhile, as The Day reported the hearing officers finding that the town held an illegal meeting, albeit one not done in bad faith, the Town sees things a little differently.

In a statement (included verbatim below) issued by Stonington First Selectmen Edward Haberek, the headline reads: “The Day loses bid to overturn the Town of Stonington’s acceptance of open space

The New London Day lost its bid with the hearing officer for the Freedom of Information Commission to have the decision of the Stonington Board of Selectmen, accepting open space for the Cherenzia development project at Mary Hall Road in Stonington, declared null and void. The approval for the project was contested by the neighbors and the matter went to the superior court where a settlement was reached between the Town, applicant and the neighbors.

The town held an emergency meeting on December 3, 2012.  Due to an administrative error the deadline for the Chairman of the Planning and Zoning Commission to sign the plans was miscalculated to December 17, 2012.  The mistake was discovered on December 3, 2012, which was the last day for the Chairman to sign the plans.  The plans for the subdivision would not be signed until the Board of Selectmen accepted certain areas of open space.  When presented with the problem,  First Selectman Edward Haberek Jr., consulted with the Town Attorney Tom Londregan and it was decided that an emergency meeting would be proper to avoid the substantial time and expense if the settlement agreement and the permits were to be rendered null and void.

The Day newspaper challenged the meeting and the decision and filed a claim with the Freedom of Information Commission.  The Town defended its action on the grounds that this was an “unexpected situation” that demanded immediate attention.  Substantial property rights and benefits were at risk both for the applicant and its project and also for the taxpayers of the Town given the time, effort and money expended by Town staff in its review of the special use permit and subdivision application and the subsequent litigation that ensued.  Attorney Thomas J. Londregan, the Town Attorney, said “failure of the Town to act when it did would have put in jeopardy a significant project that would substantially increase the tax base for Stonington.  A lot of hard work went into the settlement with the developer and the neighbors and all would have been adversely affected had not the Town acted immediately.”

The proposed decision by Lisa Fein Siegel, the hearing officer, found that even though the action taken by the Board of Selectmen was ministerial in nature and made in good faith she ruled that the Town miscalculated the days for action by the town and therefore there was no emergency. Notwithstanding this conclusion she declined to recommend that the action be declared null and void as requested by Joe Wojtas representing the New London Day newspaper.

Attorney Londregan said; “Unfortunately, the FOI Commission does not allow for honest mistakes to be corrected even when it finds that the Town had no discretion and its duty was ministerial in that it had to act.””