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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Joseph A. McElroy, |
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Complainants |
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against |
Docket #FIC 2001-376 | |
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Board
of Public Safety, |
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Respondents |
December 12, 2001 | |
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The above-captioned matter was heard as a contested
case on September 21, 2001, at which time the complainant and the respondent
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. For
purposes of hearing, the above-captioned complaint was consolidated with
Docket #FIC 2001-377, Kevin H. Hayes v. Board of Public Safety, City of
Torrington.
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 filed on
August 10, 2001 the complainant appealed to this Commission alleging that the
respondent violated the Freedom of Information (“FOI”) Act by improperly
conducting an executive session during its July 11, 2001 meeting.
3.
At the hearing on
this matter, the respondent moved to dismiss the complaint on the ground that
this Commission lacks jurisdiction because the complaint was filed via fax.
In support of its motion, the respondent cited §1-21j-22 of the
Regulations of Connecticut State Agencies and claimed that because the
superior court does not accept faxed complaints, this Commission is precluded
from accepting such complaints.
4.
Section 1-21j-22 of
the Regulations of Connecticut State Agencies provides in relevant part that:
“the [FOI] commission shall accept papers and other recorded information
transmitted by electronic mail or fax to the same extent permitted by the
rules of the superior court in civil actions.”
5.
It is found that the
complaint in this matter was filed with this Commission via fax transmittal on
August 10, 2001.
6.
It is found that
pursuant to the Connecticut Practice Book the superior court does not accept
filings via fax transmittal.
7.
However, §1-21j-13
of the Regulations of Connecticut State Agencies provides in relevant part
that “[w]here good cause appears, the commission or any presiding officer
may permit deviation from sections 1-21j-1 to 1-21j-57, inclusive, of the
Regulations of Connecticut State Agencies, except where precluded by statute.”
8.
It is found that the
complaint in this matter was filed by fax within the statutory period required
for filing complaints; the respondent did not submit its motion to dismiss the
complaint until the hearing on this matter, although it had at least two weeks
prior to the hearing within which to make such motion; and all parties were
present at the hearing on this matter prepared to proceed on the merits of the
case.
9.
Consequently, it is
found that good cause appears to warrant deviation from §1-21j-22 of the
Regulations of Connecticut State Agencies and the respondent’s motion to
dismiss the complaint is accordingly denied.
10.
With respect to the
complainant’s allegation described in paragraph 2, above, it is found that
the respondent held a meeting on July 11, 2001 during which it entered into
executive session, without any objection from the complainant who was in
attendance at such meeting, to discuss the top four eligible candidates for
promotion from lieutenant to captain in the city of Torrington’s Department
of Fire Service.
11.
It is found that the
top four candidates, from highest to lowest, as determined by their
promotional examination scores included Mr. McElroy, the complainant; a Mr.
Hayes; a Mr. Smith; and a Mr. Starr.
12.
It is found that
during the July 11, 2001 executive session the respondent reviewed and
discussed each of the candidate’s portfolios, which contained information
regarding their performance in their present and past positions.
13.
It is found that
during the July 11, 2001 executive session, the respondent invited the chief
and deputy chief into said session and each presented testimony and opinion
with respect to the candidates for promotion.
14.
It is found that at
the conclusion of the July 11, 2001 executive session, the respondent,
convened in open session, announced and voted to promote Smith and Starr.
15.
At the hearing on
this matter, the complainant claimed that the respondent’s practice in
awarding promotions had been to enter into executive session, review only the
names and scores of the top four candidates and promote the top scoring
candidate or candidates, depending on the number of available positions.
The complainant claimed that in the fourteen years that he has
witnessed the respondent’s promotion process, it never deviated from that
practice. He further claimed that
had he been aware that the respondent would deviate from its practice and hold
an in depth discussion regarding his performance, which included an inspection
of his portfolio and consideration of his superior officers’ opinions, he
would have objected to the executive session and required that the discussion
be held in open session.
16.
Section 1-200(6), G.S.,
provides in relevant part that:
"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 . . . .
17.
Section 1-231(a), G.S.,
provides in relevant part that:
[a]t
an executive session of a public agency, attendance shall be limited to
members of said body and persons invited by said body to present testimony or
opinion pertinent to matters before said body provided that such persons'
attendance shall be limited to the period for which their presence is
necessary to present such testimony or opinion . . . .
18.
It is found that the
complainant was present at the July 11, 2001 meeting and was present when the
respondent board voted and entered into the July 11, 2001 executive session.
19.
It is found that the
complainant was aware prior to the July 11, 2001 meeting that he was one of
the top four eligible candidates and that his name and score on the
promotional examination would be submitted to the respondent for review during
the July 11, 2001 executive session.
20.
It is found that the
complainant was not aware that the respondent was permitted under the FOI Act,
or that the respondent intended, to have an in depth discussion of his
performance during the July 11, 2001 executive session, as described in
paragraph 12, above.
21.
It is found that
while the respondent could have made it clear to the complainant that it would
hold a more in depth discussion regarding the promotions than it had in the
past, the respondent is under no legal obligation to provide notice to the
complainant of the intended depth of its discussion.
22.
It is concluded
therefore that the respondent did not violate the provisions of §1-200(6),
G.S.
The following order
by the Commission is hereby recommended on the basis of the record concerning
the above-captioned complaint.
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 12, 2001.
_______________________________________
Petrea A. Jones
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:
Board of Public Safety,
City of Torrington
c/o Albert G. Vasko, Esq.
Corporation Counsel
City of Torrington
140 Main Street
Torrington, CT 06790
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-376/FD/paj/12/17/2001