FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Sydney M. Libby,
Complainant
against Docket #FIC 93-248
Middletown Board of Ethics,
Respondent January 26, 1994
The above-captioned matter was heard as a contested case on November 30, 1993, 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 93-242, Sydney M. Libby against Middletown Board of Ethics.
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 filed August 31, 1993, the complainant appealed to the Commission, alleging that the respondent met in secret session without prior notice on August 19, 1993, and moved the meeting from town offices to a bank to keep the complainant from attending.
3. It is found that the respondent had scheduled a regular meeting for August 3, 1993, but was unable to convene a quorum for that day.
4. It is found that the respondent rescheduled the meeting for August 18, 1993, but was again unable to convene a quorum for that day.
5. It is found that the respondent rescheduled the meeting for 5:30 p.m. on August 19, 1993 in the public conference room at Farmers and Mechanics Bank, by filing a notice of the time and place of the meeting with the Middletown city clerk at 4:00 p.m. on August 18, 1993.
6. It is found that the respondent then held a special meeting on August 19, 1993 to review certain complaints of ethics violations.
7. The complainant maintains that the notice of the August 19, 1993 meeting was inadequate because it did not describe the business to be transacted at that meeting.
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8. It is found that the respondent had previously filed an agenda for its August 3, 1993 meeting with the Middletown city clerk on July 19, 1993.
9. The respondent maintains that the notice of the August 19, 1993 meeting did not need to describe the business to be transacted, since the August 19, 1993 meeting was a rescheduling of the August 3, 1993 regular meeting for which an agenda had been filed.
10. It is found, however, that the notice of the August 19, 1993 meeting does not indicate that it is a rescheduling of the August 3, 1993 regular meeting, or refer to the agenda of that meeting.
11. It is concluded that the respondent violated 1-21(a), G.S., by failing to describe in the notice of its August 19, 1993 special meeting the business to be transacted.
12. The complainant further maintains that the respondent's notice of its August 19, 1993 meeting was inadequate in that it did not expressly apprise the public that matters would be considered in closed session.
13. The Commission notes that, as a matter of good public policy, public agencies would do well to inform the public if they expect substantial portions of their meetings to be closed to the public.
14. It is concluded, however, that nothing in 1-21(a), G.S., requires that the notice for a public meeting apprise the public that all or portions of the meeting will be closed to the public.
15. It is found that at its August 19, 1993 meeting the respondent convened in closed session, which it called an executive session, to discuss an ethics complaint brought by the complainant in this matter against two city officials.
16. In his complaint, the complainant alleges that the closed session was impermissible because meetings to discuss ethics violations are not a proper subject for an executive session pursuant to 1-18a(e), G.S.
17. The respondent maintains that the closed session was, however, permissible pursuant to 1-82a, G.S.
18. Section 1-82a, G.S., provides in relevant part:
(a) Unless the [state ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except
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upon the request of the respondent. A commission evaluation of a possible violation of this part prior to the filing of a complaint by the commission shall be confidential except upon the request of the subject of the evaluation. ...
(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.
19. Section 7-148h, G.S., provides that 1-82a(a) through (e), G.S., shall apply to the investigation and finding of probable cause by any municipal agency created to investigate allegations of unethical conduct.
20. It is found that the the August 19, 1993 meeting was convened to investigate whether a probable cause finding was warranted, and that no probable cause finding was made.
21. It is concluded that the respondent's August 19, 1993 meeting was appropriately closed to the public pursuant to 1-82a and 7-148h, G.S.
22. In his complaint, the complainant alleges that the August 19, 1993 meeting was held at a bank in order to exclude him.
23. It is found, however, that the August 19, 1993 meeting was held at the bank because no meeting rooms were available that day at the town hall, and that the public portions of the meeting were open to the public.
24. At the hearing, the respondent requested that civil penalties be assessed against the complainant pursuant to 1-21i(b), G.S., on the grounds that the complaint was frivolous, without reasonable grounds, and solely for the purpose of harasssing the respondent.
25. It is found, however, that the complainant prevailed on a portion of his complaint; that he had reasonable grounds for the filing of the complaint; and that the Commission was presented with no evidence to support a finding of harassment.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
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1. Henceforth, the respondent shall strictly comply with the notice requirements for special meetings contained in 1-21(a), G.S.
2. The Commission urges the respondent, in light of the findings in paragraphs 12 through 14 of the findings, above, to help avoid public confusion by specifying, where appropriate, those meetings or portions of meetings from which the respondent expects the public to be excluded.
Approved by Order of the Freedom of Information Commission at its special meeting of January 26, 1994.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Sydney M. Libby
c/o Timothy Everett, Esq.
Todd Fernow, Esq.
UConn Legal Clinic
65 Elizabeth Street
Hartford, CT 06105
Middletown Board of Ethics
c/o Timoth Lynch, Esq.
Deputy City Attorney
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457
Elizabeth A. Leifert
Acting Clerk of the Commission