FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Matthew L. Schuerman and The Day,

Complainant

against Docket #FIC 1997-272

New London Board of Education,

Respondent January 28, 1998

The above-captioned matter was heard as a contested case on November 12, 1997, at which time the complainant and the respondent appeared, 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 dated August 22, 1997, and filed on August 25, 1997, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information Act (“FOIA”) by holding an illegal executive session at its July 28, 1997 meeting when it received “an update from the Advisory Committee to Select a Superintendent of Schools” (the “Advisory Committee”).

3. The respondent contends that the executive session was authorized by §1-18a(6)(A), G.S., and also that the respondent had the right to receive a report on the work product of the Advisory Committee in executive session because the Advisory Committee was a “personnel search committee” whose meetings are not included within the definition of “meeting” for purposes of FOIA.

4. Section 1-18a(6), G.S., provides in pertinent part:

"Executive sessions" means a meeting of a public agency at which the public is excluded for one or more of the following purposes: (A) 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….[emphasis added]

5. It is found that the respondent met with representatives of the Advisory Committee during an executive session held at the respondent’s July 28, 1997 meeting (the “executive session”).

6. It is also found that the Advisory Committee was a “personnel search committee”, as that term is defined at §1-18a(7), G.S.

7. It is found that the discussion at the executive session was in the nature of a preliminary progress report, concerning the timetable, budget and a search consultant for the Advisory Committee, but not including any discussion of specific applicants for the position of school superintendent.

8. It is concluded that, because §1-18a(6)(A), G.S., by its own terms later refers to the “public officer or employee” as “such individual”, this subsection does not authorize an executive session until and unless a specific individual is to be discussed. If there is no “individual” to be notified that he or she is to be discussed, so that he or she may require discussion to be held at an open meeting, the discussion in question is not within the scope of the subsection and the public may not be excluded absent another authorized purpose.

9. It is also concluded that, while the Advisory Committee may meet in executive session as a “personnel search committee” pursuant to §1-18a(2), G.S., a report by the Advisory Committee at a meeting of the respondent is not a discussion which authorizes the respondent to hold an executive session, based upon a theory that the respondent is reviewing the work product of the Advisory Committee.

10. It is therefore concluded that the respondent violated §1-21(a), G.S., when it held the executive session.

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

1. Henceforth, all meetings of the respondent with the Advisory Committee shall be open to the public, unless an individual candidate or candidates for school superintendent are to be discussed at an executive session as authorized by §1-18a(6)(A), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 28, 1998.

_________________________

Doris V. Luetjen

Acting Clerk of the Commission

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:

Matthew L. Schuerman and The Day

P.O. Box 1231

New London, CT 06320-1231

New London Board of Education

c/o Howard A. Steinman

Siegel, O’Connor, Schiff & Zangari, P.C.

150 Trumbull Street

Hartford, CT 06103

__________________________

Doris V. Luetjen

Acting Clerk of the Commission

FIC1997-272/FD/tcg/01281998