FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Diane Weaver Dunne and The Enfield Press,

Complainants,

against Docket #FIC 89-12

Enfield Ethics Commission,

Respondent June 28, 1989

The above-captioned matter was heard as a contested case on February 17 and March 23, 1989, at which time the complainants and the respondent 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 respondent is a public agency within the meaning of §1-18a(a), G.S.

2. On October 26 and 31, November 2, 3 and 21, and December 12, 1988, the respondent held hearings on charges of a conflict of interest regarding town councilman Richard LeBorious.

3. The respondent deliberated on that same topic in executive session on December 12, 14, 15 and 21, 1988.

4. By letter dated January 2, 1989, and filed with the Commission on January 9, 1989, the complainants appealed to the Commission, alleging:

a. the respondent failed to file proper notice for the October 31 and November 2 and 3, 1988, public sessions;

b. and the respondent failed to notify Mr. LeBorious of the executive session and give him the opportunity to have the deliberations occur in public.

5. By letter dated February 10, 1989, and filed with the Commission on February 14, 1989, the complainants amended their appeal to request both a null and void order and a civil penalty and to allege additionally:

a. the respondent met in executive session on January 26, 1989 for an impermissible purpose, the discussion of conflict of interest charges brought against a teacher named Mr. Kiner;

Docket FIC 89-12 Page Two

b. and the respondent failed to notify Mr. Kiner of the executive session and give him the opportunity to have the December deliberations occur in public.

6. At the hearing on the matter, the respondent moved to dismiss the complaint as to the meetings before December 12, 1989, claiming the complaint was not filed within thirty days of those meetings as required by §1-21i(b), G.S. The complainants claimed the respondent's hearings were one continuous proceeding. The hearing officer granted the motion to dismiss.

7. Also at the hearing, the respondent moved to dismiss the amended complaint, claiming Mr. Kiner received proper notice of the January 26, 1989 meeting. The complainants claimed the issue was whether the respondent convened in executive session for a permitted purpose. The hearing officer denied the motion to dismiss.

8. During the hearing the respondent also moved for summary judgment on the amended complaint, which the hearing officer took under advisement but did not grant.

9. It is found that Mr. LeBorious was represented by competent counsel throughout the respondent's proceedings concerning him.

10. It is found that at the outset of the proceedings his counsel agreed to the respondent's written rules of procedure, which state that the respondent would deliberate in a closed session to reach their decision on the ethics charges.

11. Thus it is concluded that Mr. LeBorious waived his opportunity to require the deliberations take place in a public session.

12. It is found that Mr. Kiner received notice of the January 26, 1989 meeting.

13. It is also found, however, that the respondent failed to prove he was given a meaningful opportunity to require the discussion about him be held in public session.

14. Thus it is concluded the respondent violated §§1-18a(e)(1) and 1-21(a), G.S., by not giving Mr. Kiner a meaningful opportunity to require a public session.

15. It is found that in both individual's cases the respondent convened in executive sessions to discuss whether, based on evidence presented in public session, conflicts of interest existed.

Docket #FIC 89-12 Page Three

16. It is found that in Mr. LeBorious's case the issue was whether his position as both a town councilman and an officer of Enfield's largest corporate tax delinquent created a conflict of interest.

17. It is found that in Mr. Kiner's case the issue was whether his employment as both a local teacher and as a state representative created a conflict of interest.

18. It is found, therefore, that for each of these individuals the respondent discussed in executive session whether their status outside the municipal government created a conflict of interest with their positions in the municipal government, not their job performance per se.

19. Thus it is found that the respondent did not convene in executive session for a purpose permitted by §1-18a(e), G.S.

20. It is concluded that the respondent violated §§1-18a(e) and 1-21(a), G.S., by convening in executive session for an impermissible purpose.

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

1. The respondent forthwith shall amend its written rules of procedure in a manner so as to be in accordance with the conclusions in paragraphs 19 and 20 of the findings, above.

2. The respondent henceforth shall act in strict compliance with §§1-18a(e) and 1-21(a), G.S.

3. The Commission declines to issue a null and void order or impose a civil penalty upon the respondents.

Docket #FIC 89-12 Page Four

PURSUANT TO 4-180(c) C.G.S THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

DIANE WEAVER DUNNE AND THE ENFIELD PRESS, 25 Grant Road,

RFD #2, Enfield, CT 06082

ENFIELD ETHICS COMMISSION, c/o Walter R. Dudek, Esquire,

Enfield Town Counsel, Dudek and Arthur, P.O. Box 490,

Enfield, CT 06982

Approved by order of the Freedom of Information Commission at its regular meeting of June 28, 1989.

Karen J. Haggett

Clerk of the Commission