FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Nicholas B. Wynnick,
Complainant
against Docket
#FIC 89-42
Ansonia Library Board of
Directors,
Respondent July
26, 1989
The above-captioned matter was heard as a contested case
on June 6, 1989, at which time the complainant and the respondent appeared,
stipulated to certain facts and presented testimony, exhibits and argument on
the complaint. This case was
consolidated for hearing with Docket #FIC 89-43 and Docket #FIC 89-70.
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. The respondent held a regular meeting on January 9,
1989.
3. At that meeting, the respondent voted unanimously to
convene in executive session for the stated purpose of discussing the
employment situation of an individual who was employed by the Ansonia Library.
4. That discussion was undertaken pursuant to the item
"Old Business" on the agenda for the January 9, 1989 meeting.
5. By letter of complaint dated February 6, 1989 and
received by the Commission on February 7, 1989, the complainant appealed to the
Commission, alleging that:
a. the agenda for the January 9, 1989
meeting did not apprise the public of the topic of the executive session or of
the identity of the employee to be discussed;
Docket #FIC 89-42 Page
2
b. the employee discussed in executive
session was not notified that her performance would be discussed in executive
session;
c. the respondent took no vote to indicate
the result of its discussion in executive session;
d. the minutes of the executive session
failed to identify all persons who attended the executive session; and
e. individuals other than members of the
respondent board attended the executive session for longer than necessary to
present testimony or opinion.
6. At the hearing, the hearing officer denied the
respondent's request that the hearing be continued because the president of the
respondent board was unable to attend and present testimony.
7. With respect to the allegation described in paragraph
5.a., above, it is found that the agenda item "Old Business" did not
reasonably apprise the public that the respondent would discuss the performance
of an employee of the Ansonia Library.
8. It is also found that the respondent did not vote to
add the discussion of the employee to its agenda.
9. It is therefore concluded that the respondent violated
§1-21(a) by considering business not included in its filed agenda nor added to
such agenda.
10. With respect to the allegation described in paragraph
5.b., above, it is found that the complainant twice requested, and the
respondent twice was unable to provide, a copy of any notice informing the
employee discussed in executive session that such discussion would occur.
11. It is also found that the respondent offered no
evidence to prove that notice was given to the subject employee, either in
writing or orally.
12. It is concluded that the respondent violated
§§1-18a(e)(1) and 1-21(a) by discussing the employment, performance,
evaluation, health or dismissal of the subject employee without providing that
employee an opportunity to require that such discussion be held at an open
meeting.
13. With respect to the allegation described in paragraph
5.c. above, it is concluded that there is no requirement under the Freedom of
Information Act that an agency vote upon matters discussed in executive
session.
Docket #FIC 89-42 Page
3
14. With respect to the allegations described in
paragraphs 5.d. and 5.e., above, it is found that the executive session on
January 9, 1989 was attended in its entirety by the Library Director, the
Assistant Library Director, and the Library Clerk.
15. It is found that none of the three individuals
described in paragraph 14, above, are members of the respondent board.
16. It is also found that the minutes of the January 9,
1989 meeting do not disclose that those three individuals attended the
executive session convened at that meeting.
17. It is also found that the respondent failed to prove
that those three persons were invited by the respondent to present testimony or
opinion pertinent to the subject of the executive session, or that their
attendance was limited to the period for which their presence was necessary to
present testimony or opinion.
18. It is therefore concluded that the respondent
violated §1-21g(a), G.S., by not limiting attendance at the January 9, 1989
executive session to members of the respondent and persons invited by the
respondent to present testimony or opinion pertinent to matters before the
respondent, by not limiting such attendance by invitees to the period for which
their presence was necessary to present such testimony or opinion, and by
failing to disclose in the minutes of the January 9, 1989 meeting all persons
who were in attendance at the executive session.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint:
1. The respondent shall henceforth act in strict
compliance with the requirements of §1-21(a), G.S., regarding the consideration
of business not included in its filed agenda, of §1-18a(e)(1), G.S., regarding
the provision of an opportunity to any employee to require that discussion of
his or her performance be held at an open meeting, and of §1-21g(a), G.S.,
regarding attendance at executive sessions.
Docket #FIC 89-42 Page
4
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:
NICHOLAS B. WYNNICK
55 Prospect Street
Ansonia, CT 06401
JAMES E. SHEEHY, ESQ.
303 Wakeley Avenue
Ansonia, CT 06401
Approved by order of the Freedom of Information
Commission at its regular meeting of July 26, 1989.
Karen
J. Haggett
Clerk
of the Commission