FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Fred Laberge and New Haven Register,
Complainants
against Docket #FIC 90-460
New Haven Board of Education,
Respondent January 8, 1991
The above-captioned matter was heard as a contested case on December 18, 1990, 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. By letter of complaint dated November 29, 1990 and filed with the Commission on November 30, 1990, the complainants appealed to the Commission, alleging that the respondent:
a. convened an illegal emergency meeting on November 28, 1990;
b. improperly excluded a reporter from the meeting;
c. failed to notify any individual who was discussed in executive session at the meeting; and
d. illegally convened an executive session at the outset of the meeting.
3. At the hearing, the respondent moved to dismiss the complaint on the grounds that the complaint was not filed by an aggrieved person or by a person with first-hand information.
4. It is concluded, however, that nothing in the Freedom of Information ("FOI") Act requires a complainant to demonstrate aggrievement or first-hand knowledge of the facts constituting a denial of rights under the FOI Act.
Docket #FIC 90-460 Page 2
5. The respondent's motion is therefore denied.
6. It is found that the New Haven Board of Finance had been conducting closed meetings concerning the conduct of two of the respondent's employees.
7. It is found that the two employees had been accused of instructing vendors to submit bills that charged services to the wrong fiscal year.
8. It is found that on the morning of November 28, 1990, after the finance board's meeting on the previous evening, the New Haven Corporation Counsel contacted the respondent's counsel regarding possible action to be taken against the two employees at the finance board's meeting the next morning.
9. Specifically, it is found that the corporation counsel indicated that he would be submitting his final report and recommendations concerning the employees to the board of finance, that the board of finance would be discussing whether the matters should be referred to the State's Attorney for possible criminal prosecution, and that the corporation counsel wished to meet with the respondent the next day.
10. It is found that the respondent's counsel communicated this information to the superintendent of schools, Dr. John Dow, Jr., who in turn communicated it to the respondent's chairman, the Reverend Curtis Cofield.
11. It is found that the chairman in consultation with the superintendent determined that it was necessary for the respondent board to convene an emergency meeting before the finance board meeting in order to discuss the conduct of the two employees, and to determine whether to take any action before the finance board's meeting.
12. It is found that the respondent, through the superintendent's executive assistant, Victor Medina, informed the two employees, finance director Rosalyn Hevenstone and accountant Dominic Balletto, that the respondent intended to discuss them in executive session that night and that they had the right to require the discussion to be in public session.
13. It is found that the two employees waived their rights for written notice and consented to the discussion being conducted in executive session.
14. It is found that a reporter for the complainant Register, William Hanrahan, learned late that afternoon of the respondent's intention to convene an emergency meeting that evening.
Docket #FIC 90-460 Page 3
15. It is found that the reporter then called the respondent's chairman, inquired as to the purpose of the emergency meeting, and was informed that the purpose was to discuss the allegations against the two employees made in recent newspaper stories.
16. It is found that the respondent convened an emergency meeting on November 28, 1990 at about 7:10 p.m. to meet with the respondent's counsel to consider the request from the corporation counsel to meet with the respondent the next day to discuss the findings of the investigation of the school billing dispute and the corporation counsel's possible recommendation of prosecution of the two employees.
17. It is found that the reporter was present before and at the outset of the meeting, and again questioned the purpose and legality of the meeting with board members including the chairman.
18. It is found that the chairman responded that the purpose of the meeting was to discuss personnel performance.
19. It is found that the reporter specifically objected to an emergency meeting being called for that purpose, and that the chairman noted the objection.
20. It is found that the respondent voted to convene in executive session for the stated purpose of discussion of personnel performance.
21. It is found that the reporter also objected to the convening of the executive session.
22. It is found that a member of the respondent, M. Rodriguez, commented that it would be appropriate for the reporter to leave the executive session, that the superintendent and a school administrator, Charles Deafenbaugh, then removed the reporter from the room, and that the superintendent then returned to the room.
23. It is found that the reporter indicated that he wished to remain in the fifth floor waiting area, which was separated by 15-20 yards and three sets of doors from the meeting room, so that he could attend the meeting when it reconvened in public session.
24. It is found that the administrator refused to permit the reporter to wait for the conclusion of the executive session in the fifth floor lobby area, and insisted on removing him to the ground floor of the building where security personnel could ensure that he remained.
Docket #FIC 90-460 Page 4
25. It is found that the respondent received testimony from the two board employees under investigation during its executive session, discussed their performance, received the opinion of their counsel regarding the same, and concluded that no action was warranted or would be taken.
26. It is found that at the conclusion of its executive session discussion the respondent reconvened in open session and adjourned the meeting.
27. It is found that the respondent failed to notify the reporter that it had reconvened in public session for adjournment or otherwise permit him to be present during the public adjournment.
28. The complainant maintains that the facts of the case demonstrate that there was no emergency justifying the respondent's meeting, since no action was taken.
29. It is concluded, however, that nothing in the FOI Act requires a public agency to take action at an emergency meeting and that lack of action is not the only fact relevant to the existence or not of an emergency.
30. It is found that the respondent learned of the board of finance's intention to refer criminal prosecution of the respondent's employees less than 24 hours before the meeting at which the board of finance was to consider such action.
31. It is also found that the respondent reasonably sought the testimony of the two employees and the advice of its counsel with respect to the possibility of taking action concerning the two employees before the board of finance meeting, and could not have noticed and convened a special meeting to receive such testimony and advice before the board of finance meeting.
32. It is further found that the respondent could not have discussed or determined whether action was warranted without meeting.
33. It is concluded therefore that the respondent did not violate 1-21, G.S., by convening an emergency meeting for the purposes described above.
34. With respect to the complainant's claim that going into executive session at the outset of an emergency meeting is illegal, it is concluded that nothing in the FOI Act prohibits an agency from convening in executive session at the beginning of an emergency meeting, provided the meeting has first been opened publicly.
Docket #90-460 Page 5
35. With respect to the complainant's claim that the exclusion of the reporter from the meeting was illegal, it is concluded that the respondent convened in executive session to discuss the performance of its two employees, a purpose permitted by 1-18a(e)(1), G.S., and that the exclusion of the reporter from the executive session was therefore proper.
36. It is also concluded, however, that the respondent also excluded the reporter from the public adjournment of its meeting, in violation of 1-21, G.S.
37. At the hearing, the respondent moved pursuant to 1-21i, G.S., that a civil penalty be assessed against the complainants.
38. It is found that the complaint was not filed frivolously, without reasonable grounds, and solely for the purpose of harassing the respondent.
39. It is concluded therefore that civil penalties against the complainants are unwarranted.
40. At the hearing, the complainants in turn moved pursuant to 1-21i, G.S., that a civil penalty be assessed against the respondent.
41. It is found that the only basis for imposing a civil penalty against the respondent is its removal of the Register's reporter to the ground floor of the building in which the meeting was held and its failure to notify him of the conclusion of the executive session, which denied him the right to attend the public adjournment of the meeting.
42. The respondent maintains that the extreme removal was justified because it was possible for the reporter to eavesdrop on the meeting.
43. Given the security provided by the substantial separation between the fifth floor lobby where the reporter wished to wait and the meeting room itself, and no indication whatsoever of the likelihood of the reporter to attempt to breach it, it is found that the respondent's action was not objectively necessary.
44. However, under the discrete circumstances of this case, which included the discussion of possible criminal prosecution, the urgency created by short period of time between the news of the board of finance's intention to act and the proposed date for that action, and the heated emotions raised by the confrontation among various parties, including the parties to this case, the Commission in its discretion declines to impose civil penalties against the respondent.
Docket #FIC 90-460 Page 6
45. Finally, at the complainant's request, the Commission takes administrative notice of its record and final decision in Docket #FIC 87-316, New Haven Register against New Haven Board of Education.
46. The Commission notes that the stipulated agreement of the parties in that case was that the respondent would provide the same notice to the complainant as it did to its own members.
47. It is found that the respondent did not give the same notice of its emergency meeting to the complainant as it did to its members in this case.
48. The respondent maintains that the agreement in Docket #FIC 87-316 was limited to special meetings.
49. It is found that the agreement recited in the record of Docket #FIC 87-316 is not by its terms limited to special meetings, although the underlying dispute concerned special meetings.
50. In any event, the Commission notes that some of the friction generated between the parties to this case could have been averted had the respondent, in the spirit of its agreement in Docket #FIC 87-316, kept the complainant more fully informed of its doings.
51. It is found that the minutes filed within 72 hours of the meeting did not clearly reflect that the motion to convene in executive session was for the purpose of discussing personnel performance.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to the allegations described in paragraph 2.a, c and d of the findings above, the complaint is hereby dismissed.
2. With respect to the allegation described in paragraph 2.b of the findings above, the respondent shall henceforth strictly comply with the requirements of 1-21, G.S., regarding the open meetings requirements applicable to all public portions of its meetings, including adjournments.
3. To help assure compliance with the intent of paragraph 2 of the order, above, and to reduce miscommunication between the parties, the respondent shall henceforth provide the same notice of its meetings, including emergency meetings, to the New Haven Register and all other news media as it provides to its members.
Approved by order of the Freedom of Information Commission at its special meeting of January 8, 1991.
Tina C. Frappier
Acting Clerk of the Commission
Docket #FIC 90-460 Page 7
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:
FRED LABERGE AND NEW HAVEN REGISTER
40 Sargent Drive
New Haven, CT 06511
NEW HAVEN BOARD OF EDUCATION
c/o Lubbie Harper, Jr., Esq.
The Harper Law Firm, P.C.
59 Elm Street
New Haven, CT 06510
Tina C. Frappier
Acting Clerk of the Commission