FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Timothy J. Schapp, |
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Complainant |
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against |
Docket #FIC 2000-323 |
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Board of Public Safety, |
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Respondents |
December 13, 2000 |
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The above-captioned matter was heard as a contested case on July 25, 2000, at which time the complainant and the respondent appeared and presented testimony, exhibits and argument on the complaint. At the outset of the hearing, the respondent moved for a continuance and moved to recuse the hearing officer. Both motions were denied.
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.
2. By letter of complaint dated June 19, 2000, and filed with the Commission on June 26, 2000, the complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act with respect to a June 14, 2000 meeting by not notifying him that his employment would be discussed during an executive session of the respondent prior to such session. The complainant requested that the action taken at the June 14, 2000 meeting of the respondent be declared null and void.
3. Section 1-225(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, shall be open to the public….
4. Section 1-200(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; (B)
strategy and negotiations with respect to pending claims or pending
litigation to which the public agency or a member thereof, because of his
conduct as a member of such agency, is a party until such litigation or claim
has been finally adjudicated or otherwise settled;…(E)
discussion of any matter which would result in the disclosure of public
records or the information contained therein described in subsection (b) of
section 1-210.
5. It is found that the respondent held a regular meeting on June 14, 2000, and that, during such meeting, the respondent voted to convene in executive session for the stated purpose of discussing “personnel matters”. It is found that the complainant is an employee of the fire department of the City of Torrington. It is also found that the chairman of the respondent board [hereinafter “chairman”] stated with regard to the executive session that “it’s for a report from our counsel in regard to personnel matters” and that “in regard to personnel matters, we have hired counsel.” It is further found that, when asked by a member of the public which personnel, the chairman responded “fire department personnel.”
6. It is found that, immediately upon reconvening in open session, the respondent unanimously voted to suspend with pay the complainant herein, and authorized counsel to proceed with the disciplinary hearing process.
7. It is found that, at such time, the complainant asked the respondent if any specific employees were discussed in the executive session, and, more specifically, if his name came up. It is further found that the chairman first informed the complainant that she didn’t believe his name came up and that, when pressed, stated “came up, we received the recommendation of our counsel and the Board made a decision.”
8. It is found that the chairman provided the Commission with an affidavit, which the Commission took into evidence and which states in relevant part that “…[the respondent] went into executive session to discuss a report from outside counsel it had hired in regard to personnel matters in the Fire Department. The purpose of the executive session was to hear the recommendation of Attorney Michael McKeon, who had been hired by the [respondent] to represent it in possible disciplinary actions against various members of the Torrington Fire Department….” [Emphasis added.]
9. On brief, the respondent first contends that it was denied due process because of the hearing officer’s denial of the respondent’s request for continuance prior to the hearing in this matter. The respondent also reiterated its request for the recusal of the hearing officer on the grounds that the complainant’s objection to the request for continuance contained a statement that he had spoken with a member of the Commission staff who indicated that the complainant had a good case in this matter. It is concluded that the respondent was not denied due process in this matter, either by the hearing officer’s denial of the continuance request described herein, or by her denial of the recusal request.
10. The respondent contends that the complainant was not discussed by the respondent during the executive session at issue, but rather that the purpose of such session was to discuss a report and recommendation by counsel to advise the board with respect to certain possible disciplinary actions against the complainant and another employee and to receive information regarding settlement discussions between the respondent’s counsel and counsels for the complainant and the other employee. The respondent relies on Shew v. Freedom of Information Commission, 245 Conn. 149 (1998), as authority. The Shew opinion related to a records request for a written report of an attorney for a municipality, and held that such report was exempt from mandatory disclosure by virtue of the attorney-client privilege.
11. It is concluded, however, that the respondent failed to present any evidence, and therefore failed to prove, that the respondent’s attorney prepared a written report for submission to the respondent. Moreover, considering the finding in paragraph 8, above, it is found that the report presented by the respondent’s attorney during the executive session was oral.
12. Section 1-231(b), G.S., provides in relevant part that: