The above-captioned matter was heard as a contested case on December 10, 1998 at which time the complainants 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 respondent board is a public agency within the meaning of § 1-18a(1), G.S.

        2. By letter of complaint dated and filed with the Commission on September 21, 1998, the complainants alleged that the respondent board violated the Freedom of Information Act by:

a) holding an illegal executive session on August 26, 1998;

b) improperly voting in executive session on August 26, 1998;

c) filing minutes of the August 3, 1998 meeting on August 27, 1998;

d) filing minutes of the August 17, 1998 meeting on August 27, 1998; and

e) filing minutes of the August 26, 1998 meeting on September 9, 1998.

        3. With respect to the allegations as described in paragraph 2a) and 2b), above, it is found that the respondent board held a special meeting on August 26, 1998, during which it convened in executive session, deliberated on the issue of probable cause in connection with two ethics complaints, and voted unanimously for a finding of probable cause. The ethics complaints concerned the complainants’ performance.

        4. It is found that the complainants had on August 17, 1998 notified the respondent board that they wanted the meetings concerning such complaints to be conducted in public. The complainants’ request for public meetings is documented in the respondent board’s minutes of August 17, 1998 as follows:

The … [board of ethics] inquired if the respondents would like the meetings regarding these matters to be open to the public or to remain private and closed to the public. Attorney Vitrano stated that the respondents wanted the meetings to be public.

        5. Section 1-18a(6)(A), 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….

        6. In addition, §7-148h, G.S., makes the provisions of subsections (a) to (e), inclusive, of §1-82a, G.S., apply to an investigation of allegations of ethical misconduct brought before a municipal ethics commission.

        7. Section 1-82a,G.S., provides in relevant part:

(a) Unless the [ethics] commission makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent. A [ethics] commission evaluation of a possible violation of this part prior to the filing of a complaint by the [ethics] 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.

[Emphasis added.]

        8. It is concluded that the complainants are public officers or employees within the meaning of § 1-18a(6)(A), G.S.

        9. It is also concluded that the respondent board violated § 1-18a(6)(A), G.S., when it convened in executive session on August 26, 1998 and discussed the performance of the complainants, notwithstanding the complainants’ August 17, 1998 request that the meetings regarding the ethics complaints be held in public.

        10. It is further found that § 1-18a(6)(A), G.S., merely permits "discussion" in executive session.

        11. Consequently, it is also concluded that the respondent board violated § 1-18a(6)(A), G.S., when it voted during the August 26, 1998 executive session.

        12. With respect to the allegations as described in paragraph 2c), 2d) and 2e), above, it is found that the respondent board filed the minutes of its August 3, 17 and 26, 1998 meetings with the city clerk’s office beyond seven days of such meetings, and such minutes were not available for public inspection within seven days of the meetings to which they refer.

        13. The respondent board contends that it does not have to make its minutes available to the public pursuant to § 2-133 of the Bristol Code, which provides, in relevant part:

The minutes of the [ethics] board are hereby declared to be confidential … unless otherwise voted by the [ethics] board with permission of the official involved where applicable.

        14. Section 1-19(a), G.S., provides, in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. [Emphasis added.]

        15. Section 1-21(a), G.S., further provides:

The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer.

        16. It is concluded that the Bristol Code is not "federal law or state statute" within the meaning of § 1-19(a), G.S., and therefore, cannot supersede the disclosure requirements of § 1-19(a), G.S.

        17. It is further concluded that the respondent board’s failure to record the votes of each of its members, taken at the August 26, 1998 meeting, is a violation of § 1-21(a), G.S.

        18. With respect to the complainants’ request that the respondent board’s August 26, 1998 vote be declared null and void, § 1-21i(b)(2), G.S., provides: "[T]he commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record."

        19. It is found that the complainants were denied the right to attend that portion of the August 26, 1998 meeting which the respondent board conducted in executive session, and during which the respondent board deliberated, evaluated and voted on the issue of probable cause.

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

        1. The respondent board’s August 26, 1998 probable cause vote is hereby declared null and void.

        2. Henceforth, the respondent board shall make available for public inspection minutes of its meetings within seven days of such meetings in accordance with § § 1-19(a) and 1-21(a), G.S.

        3. Henceforth, the respondent board shall strictly comply with the executive session provision of § 1-18a(6)(A), G.S.

         Approved by Order of the Freedom of Information Commission at its regular meeting of March 10, 1999.

_________________________

Melanie R. Balfour

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:

Frank O’Meara, Donald Goranson,
Henry Gaski, Armand Lemieux and
Jon Pose
c/o Atty. Salvatore V. Vitrano
Vitrano, Preleski & Wynne, LLC
135 West Street
Bristol, CT 06010
Board of Ethics, City of Bristol,
and City of Bristol
c/o Atty. Mark D. Malley
Seabourne & Malley
PO Box 487, 30 Main Street
Thomaston, CT 06787-0487

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1998-286FD/mrb03111999