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FREEDOM OF
INFORMATION COMMISSION |
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In the Matter of a Complaint by |
FINAL DECISION |
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Victor J. Tenore, |
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Complainants |
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against |
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Docket #FIC 1999-241 |
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Third Taxing District of the City of Norwalk, |
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Respondents |
December 8, 1999 |
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The above-captioned matter was heard as a contested case on July 15, 1999 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 §1-200(1), G.S. [formerly §1-18a(1), G.S.]
2. By letter of complaint dated May 19, 1999, and filed with the Commission on May 21, 1999, the complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act with respect to a May 13, 1999 meeting by improperly excluding him from a discussion of his job performance, pursuant to §1-200(6)(A), G.S. [formerly §1-18a(6)(A), G.S.]. The complainant requested that the action taken at the May 13, 1999 meeting of the respondent be declared null and void.
3. Section 1-225(a), G.S. [formerly §1-21(a), G.S.], provides, in relevant part:
[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200 [formerly 1-18a], shall be open to the public….
4. Section 1-200(6), G.S. [formerly §1-18a(6), G.S.], defines “executive session” to include:
…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 held a special meeting on May 13, 1999, and that the agenda for such meeting indicated that a number of items would be discussed in executive session, among them a “review of general manager’s performance.”
6. It is found that, at the time of the meeting in question, the complainant was the general manager of the respondent district. It is further found that the complainant received adequate notice of the scheduled executive session concerning his performance review.
7. It is found that, at the start of the May 13, 1999 meeting of the respondent, the complainant, his attorney, and a court stenographer engaged by the complainant, were present in the room.
8. It is found that, despite receiving the notice described in paragraph 6, above, and his attendance as described in paragraph 7, above, the complainant did not notify the respondent that he wished any discussion of his performance to be held in open session, within the meaning of §1-200(6)(A), G.S. [formerly §1-18a(6)(A), G.S.]
9. Nevertheless, it is found that the chairman of the respondent commission acknowledged that the presence of the complainant, his attorney, and a court stenographer indicated to her that the complainant wished his performance review to be conducted in open session and that it was her intention to conduct such review in open session.
10. It is found, however, that the respondent met in executive session, and that during such session, the respondent’s attorney explained to the respondent a resolution and letter prepared by such attorney terminating the complainant’s employment. It is also found that, during such executive session, one district member briefly voiced his opinion that the termination of the complainant was a mistake.
11. It is found that, after returning to the public portion of the meeting, the respondent discussed, and voted upon, the termination of the complainant.
12. It is found that the executive session described in paragraph 10, above, was not a discussion of the complainant’s performance, as set forth on the respondent’s agenda, but rather a discussion of the complainant’s dismissal within the meaning of §1-200(6), G.S. [formerly §1-18a(6), G.S.]
13. It is found that the complainant did not have adequate notice of the purpose of such executive session, either by virtue of the agenda described in paragraph 5, above, or by virtue of his attendance at the start of the meeting as described in paragraph 7, above.
14. Section 1-206(b)(2), G.S. [formerly §1-21i(b)(2), G.S.] provides that:
…The commission may declare null and void any action taken at any meeting which a person was denied the right to attend….
15. It is found that the complainant was denied the right to attend the discussion of his dismissal which was conducted in the executive session as described in paragraph 10, above.
16. It is therefore concluded that the respondent violated §1-200(6), G.S. [formerly §1-18a(6), G.S.], by discussing the dismissal of the complainant during the executive session of the May 13, 1999 meeting, without providing adequate notice of the purpose of such discussion to the complainant prior to such meeting.
17. It is found that the resolution and letter described in paragraph 10, above, were not amended during the executive session described therein. It is further found that the substance of the resolution was read into the record of the open portion of the May 13, 1999, meeting, at which the complainant and his attorney were present. It is also found that the letter was provided to the complainant immediately after the vote regarding his termination.
The following order by the Commission is hereby recommended on the
basis of the record concerning the above-captioned complaint:
1. The action taken with respect to the complainant’s employment at the May 13, 1999 meeting of the respondent is hereby declared null and void.
Approved by Order of the Freedom of Information Commission at its regular meeting of
December 8, 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:
Victor J. Tenore
c/o Atty. Edward V. O’Hanlan
Cummings & Lockwood
Four Stamford Plaza
PO Box 120
Stamford, CT 06904-0120
Third Taxing District of the City of Norwalk
c/o Atty. Louis Ciccarello
65 East Avenue, PO Box 390
Norwalk, CT 06852-0390
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-241FD/mrb/
12/20/1999