FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        Final Decision

 

George J. Boisvert,

 

                                Complainant

 

                against                   Docket #FIC 95-214

 

Robert Percoski, Phillips Roland and Somers Board of Selectmen,

 

                                Respondents                        March 27, 1996

 

                The above-captioned matter was heard as a contested case on December 27, 1995, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.

 

                2.  By letter of complaint dated June 22, 1995 and filed with the Commission on June 27, 1995 the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by improperly discussing a personnel issue concerning the complainant in an executive session on May 30, 1995.

 

                3.  It is found that on May 19, 1995 representatives from Propane Gas Company filed an employee complaint against the complainant with the respondents (hereinafter "Propane complaint"), alleging that the complainant treated them in a discourteous and unprofessional manner on May 19, 1995 while they attempted to install a propane tank.

 

                4.  It is found that following the receipt of the Propane complaint the respondent Percoski, First Selectman of the town of Somers, planned to discuss the Propane complaint in executive session on May 30, 1995 with representatives from Propane Gas Company and the complainant.

 

                5.  It is found that at approximately 11:00 am. on May 30, 1995 the respondent Percoski's administrative assistant asked the complainant to attend the planned executive session, described in paragraph 4, above, at which time the complainant declined to do so informing her that he had no intention of going into executive session with the selectmen.

 

Docket #FIC 95-214                                             Page 2

 

                6.  It is found that the respondent board held a regular meeting on May 30, 1995 during which it convened in executive session with representatives of Propane Gas Company and discussed the Propane complaint.

 

                7.  Section 1-18a(e)(1), G.S., permits a public agency to convene in executive session for:

 

                                discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting.

 

                8.  It is found that the respondent board's discussion of the Propane complaint constitutes a discussion of the complainant's employment, performance and evaluation within the meaning of 1-18a(e)(1), G.S.

 

                9  The respondent contends that the complainant did not require the discussion be held at an open meeting.

 

                10.  However, it is found that the complainant indicated to the respondent Percoski's administrative assistant, upon her informing him of the planned May 30, 1995 executive session, that he had no intention of going into an executive session and that he did not wish an executive session.

 

                11.  It is found that the complainant's communication to the administrative assistant, described in paragraph 10, above, was sufficient indication to the respondent that the complainant was invoking his right to an open meeting under 1-18a(e)(1), G.S.

 

                12.  It is therefore concluded that the respondent board violated 1-18a(e)(1), G.S., when it discussed the Propane complaint in executive session after the complainant indicated that he did not wish to have the Propane complaint discussed in an executive session.

 

                13.  The Commission in its discretion declines to impose a civil penalty in this case.

 

Docket #FIC 95-214                                             Page 3

 

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

 

                1.  Henceforth the respondents shall strictly comply with

the provisions of 1-18a(e)(1), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 27, 1996.

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission

 

Docket #FIC 95-214                                             Page 4

 

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:

George J. Boisvert

24 Grist Mill Terrace

Somer, CT 06071

 

Robert Percoski, Phillips Roland and Somers Board of Selectmen

c/o Patrick J. McHale, Esq.

Shipman & Goodwin

1 American Row

Hartford, CT 06103-2819

 

                                                                             

                                                Elizabeth A. Leifert

                                                Acting Clerk of the Commission