The above-captioned matter was heard as a contested case on March 3, 1999, 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 § 1-200(1), G.S. [formerly 1-18a(1), G.S.].

        2. It is found that the respondent board held a regular meeting on December 17, 1998, (hereinafter "December meeting") at which the respondents discussed the complainant’s job performance in executive session and voted to terminate the complainant from his position as a police officer with the Seymour Police Department (hereinafter "SPD").

        3. By letter dated January 11, 1999 and filed on January 13, 1999, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information ("FOI") Act with respect to their December meeting by:

a. failing to include discussion or action regarding the complainant’s job performance on the agenda;

b. failing to specify in the minutes the reason for convening in executive session;

c. failing to advise the complainant that they would discuss his job performance and possible termination;

d. failing to obtain a two-thirds vote to amend the agenda to add discussion or action regarding the complainant’s job performance;

e. failing to note the presence of their counsel at the executive session in the meeting minutes;

f. and denying the complainant’s right to attend the meeting.

The complainant requested that the Commission declare the actions of the respondent board with respect to the complainant null and void and impose the maximum civil penalty against the respondents.

        4. It is found that on or about November 30, 1998, the complainant filed a complaint with the Chief of the SPD against Lt. Fred Watton alleging conduct unbecoming an officer after an incident during which Lt. Watton allegedly tried to intimidate the complainant by "bumping the complainant down a hallway with his stomach" (hereinafter the "Watton complaint").

        5. It is also found that an internal investigation of the Watton complaint was conducted by the SPD.

        6. It is also found that the respondent chairman prepared the agenda for the December meeting and that the agenda included item number 6b - "Officer’s morale and/or complaints."

        7. It is also found that prior to the December meeting, the respondent chairman telephoned Lt. Watton and informed him that the Watton complaint would be discussed at the December meeting and inquired whether Lt. Watton preferred that the discussion be held in executive session.

        8. It is also found that on December 16, 1998, the complainant spoke to the respondent chairman who informed him that the Watton complaint would be discussed at the December meeting.

        9. It is also found that at the December meeting, the respondent board considered agenda item 6b and voted unanimously to convene in executive session for the purpose of discussing the Watton complaint.

        10. It is found that the respondent board discussed the Watton complaint in executive session and that portions of the written investigation of the Watton complaint, including the findings, and conclusion of the investigating officer were read during such session.

        11. It is also found that the investigation of the Watton complaint documented that the complainant had committed some attendance offenses, including that he had taken a one month leave from his duties without proper authorization from the respondent board.

        12. It is also found that the respondent board redirected its executive session discussion of the Watton complaint and discussed the complainant’s attendance record. The respondent board then invited another police officer into the executive session to corroborate information in the written investigation regarding the complainant’s attendance.

        13. It is found that the other officer mentioned in paragraph 12, above, was summoned and arrived at the meeting, with documentation of the complainant’s attendance record, within five minutes.

        14. It is also found that after some discussion regarding the complainant’s attendance and other employment issues, the respondent board reconvened in public session and a board member read a small section of a voluminous union contract pertaining to the termination of probationary employees, which section had been tabbed prior to the December meeting. Thereafter the respondent board voted to terminate the complainant from his position with the SPD.

        15. Section 1-200(6), G.S. [formerly § 1-18a(6), G.S.], provides in relevant part that:

"Executive sessions" means a meeting of a public agency at which the public is excluded 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.

        16. Section 1-225(a), G.S. [formerly § 1-21(a), G.S.], provides in relevant part that:

. . . A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.

        17. It is found that the executive session discussion that transpired at the December meeting concerning Lt. Watton and the complainant, as described in paragraphs 10 through 14, above, constituted discussion concerning the "employment", "performance", or "evaluation" of public employees within the meaning of § 1-200(6)(A), G.S. [formerly 1-18a(6)(A), G.S.].

        18. It is also found however that although the respondent board convened in executive session for permitted purposes under § 1-200(6)(A), G.S., [formerly § 1-18a(6)(A), G.S.], it failed to sufficiently state the reasons for the executive session prior to convening in executive session, in violation of § 1-225(a), G.S. [formerly § 1-21(a), G.S.].

        19. With respect to the complainant’s allegation found in paragraphs 3a and 3d, above, § 1-225(a), G.S. [formerly 1-19(a), G.S.], further provides in relevant part that ". . . [u]pon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included . . . [on the agenda] may be considered and acted upon at such meeting[s] . . ."

         20. It is found that the December meeting agenda did not include an item concerning discussion of the complainant’s performance and the respondent board did not vote to add such an item to the agenda.

        21. Consequently, it is concluded that the respondents violated § 1-225(a), G.S. [formerly 1-19(a), G.S.], with respect to the complainant’s allegations in paragraphs 3a and 3d, above.

        22. With respect to the complainant’s allegation found in paragraph 3b, above, § 1-210, G.S. [formerly § 1-19(a), G.S.], provides in relevant part that "[e]ach such [public] agency shall make, keep and maintain a record of the proceedings of its meetings."

        23. Section 1-210, G.S. [formerly § 1-19, G.S.], does not explicitly require an agency to state in its meeting minutes the purpose for convening in executive session However, § 1-210, G.S. [formerly § 1-19, G.S.], does require that minutes must fairly apprise the public of what transpired at the meeting.

        24. It is found that while the minutes of the respondent board’s December meeting, as amended, do not explicitly state the purpose of the executive session, the minutes fairly represent what transpired at the December meeting.

        25. It is therefore concluded that the respondents did not violate the FOI Act, with respect to the complainant’s allegation in paragraph 3b, above.

        26. With respect to the complainant’s allegation in paragraph 3c, above, it is found that the respondents did not provide the complainant with notice that his job performance would be discussed during the executive session and thereby denied the complainant an opportunity to request that the discussion be held at an open meeting.

It is therefore concluded that the respondents violated the provisions of § 1-200(6)(A), G.S. [formerly § 1-18a(6)(A), G.S.], with respect to the complainant’s allegations in paragraph 3c, above.

With respect to the complainant’s allegation in paragraph 3e, above, § 1-231(a), G.S. [formerly § 1-21g(a), G.S.], provides in relevant part that ". . . the minutes of such executive session shall disclose all persons who are in attendance . . . ."

It is found that the respondents’ counsel was present during the subject executive session.

It is found that until January 21, 1999, the minutes of the respondent board’s December meeting, did not indicate that the respondents’ counsel was present during the executive session.

It is also found that on January 21, 1999, the respondents corrected the minutes of the December meeting to reflect the presence of the respondent’s counsel during the executive session.

It is therefore concluded that in spite of the correction, the respondents violated the provisions of § 1-231(a), G.S. [formerly § 1-21g(a), G.S.], with respect to the complainant’s allegation in paragraph 3e, above, because the minutes did not reflect the presence of respondents’ counsel during the executive session, as stated in paragraph 30, above, at the time of the complainant’s appeal.

It is found that nothing in the FOI Act requires a public agency to allow members of the public to speak during any portion of its meetings.

Therefore it is concluded that the respondents did not violate any of the complainant’s rights under the FOI Act, with respect to he complainant’s allegation in paragraph 3f, above.

With respect to the complainant’s request that the Commission declare the actions of the respondent board null and void and to impose the maximum civil penalty against the respondents, § 1-206(b)(2), G.S. [formerly § 1-21i(b)(2), G.S.], provides in relevant part that:

" . . . upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing . . . the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars."

It is found, based upon the totality of facts and circumstances in this case, that the violations described in paragraphs 18, 21, 27 and 31, above, were without reasonable grounds.

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

The actions taken by the respondent board with respect to the complainant at the December meeting as described in paragraphs 2 and 14 of the findings, above, are hereby declared null and void.

The respondent chairman shall forthwith remit to the Commission a civil penalty in the amount of $50.00.

Henceforth, the respondents shall strictly comply with the provisions of § § 1-225(a), G.S. [formerly § 1-21(a), G.S.], 1-200(6)(A), G.S. [formerly § 1-21g(a), G.S.], and 1-231(a), G.S. [formerly § 1-21g(a), G.S.].

Approved by Order of the Freedom of Information Commission at its regular meeting of

July 14, 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:

John J. Harkins, Jr.

c/o Atty. Francis A. Teodosio

Winnick, Vine, Welch & Teodosion, LLC

375 Bridgeport Avenue, PO Drawer 668

Shelton, CT 06484

Frederick Elliott, Jr., Chairman, Board of Police

Commissioners, Town of Seymour; John Falbo;

Stephen Chucta; Gary Freeman, as members, Board

of Police Commissioners, Town of Seymour; and

Board of Police Commissioners, Town of Seymour

c/o Atty. Colleen D. Fries

Bai, Pollock & Coyne, PC

10 Middle Street

Bridgeport, CT 06604

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

FIC1999-016D/mrb/07201999