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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Marc O’Mara, |
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Complainants |
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against |
Docket #FIC 2001-199 | |
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Anita Carriero, Chairman, Police Commission, Borough of Naugatuck; Ronald Gallant; Annette Woodfield; Curt Bosco; W.F. Dambowsky, As Members, Police Commission, Borough of Naugatuck; Joan B. Taf, Mayor, and member ex-officio, Police Commission, Borough of Naugatuck; and Police Commission, Borough of Naugatuck |
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Respondent |
April 10, 2002 | |
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The above-captioned matter was heard as a contested
case on November 1, 2001 and July 20, 2001, at which times 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.
2.
By letter dated and
filed on April 19, 2001 the complainant appealed to this Commission alleging
that the respondents violated the Freedom of Information (“FOI”) Act by:
a.
convening in
executive session during the meeting of March 20, 2001 of the respondent
commission (hereinafter “the meeting”);
b.
inviting Chief
Clisham and Captain Fortin of the Borough of Naugatuck Police Department
(hereinafter “the chief” and the “the captain” respectively) into the
executive session;
c.
excluding the
complainant from the executive session;
d.
voting in executive
session; and
e.
failing to accurately
reflect what transpired at the meeting in its minutes.
The
complainant requested that this Commission impose a civil penalty against the
respondents.
3.
It is found that by
letter dated May 4, 2001 and filed on May 7, 2001 the complainant attempted to
amend his complaint to include certain other allegations with respect to the
meeting.
4.
It is found however
that this Commission lacks jurisdiction over the additional allegations
contained in the complainant’s May 4, 2001 letter because such letter was
not filed with the Commission within thirty days of the alleged violations and
were not raised in the complaint. Consequently, the additional allegations contained in the May
4, 2001 letter will not be considered herein.
5.
It is found that
during the month of January 2001, the complainant received a letter of
reprimand from the chief that was placed in the complainant’s personnel file
(hereinafter “the reprimand”).
6.
It is found that the
complainant followed certain procedures to grieve and appeal the chief’s
issuance of the reprimand.
7.
It is found that the
respondent commission held a regular meeting on February 20, 2001 at which it
intended to hear the complainant’s appeal regarding the issuance of the
reprimand.
8.
It is found however
that, at the complainant’s request, the respondent commission tabled its
discussion regarding the appeal and heard the complainant on his grievance
regarding the issuance of the reprimand instead.
9.
It is found that the
respondent chairman asked the complainant and his representative if the
discussion regarding the grievance could be heard in executive session and
that both gave their consent.
10.
It is found that the
respondent commission entered executive session and allowed the complainant to
present testimony and opinion on his grievance.
11.
It is found that, at
the conclusion of the complainant’s presentation, the respondent commission
decided to table further discussion of the grievance and any discussion of the
appeal until after it had an opportunity to get legal advice on the
appropriate procedure with respect to the grievance and appeal process.
12.
It is found that the
respondent held a regular meeting on March 20, 2001 during which it entered
executive session, at the request of the complainant’s attorney, to discuss
the complainant’s grievance.
13.
It is found that
during the executive session the complainant, the complainant’s attorney,
the chief and the captain presented testimony and opinion regarding the
issuance of the reprimand.
14.
It is found that
during the executive session, the complainant and his attorney were asked by
the respondent commission to leave the room in which the executive session was
being conducted.
15.
It is found that the
captain and the chief were asked to remain in the room to answer specific
questions about the department’s procedures for determining the appropriate
form of discipline that should be issued for certain infractions and more
specifically why the complainant had not received a more severe form of
discipline for the infraction he committed.
16.
It is found that at
the conclusion of the respondent commission’s questioning of the chief and
captain, the complainant and his attorney were invited back into the room at
which time the respondent commission moved to convene in open session and
informed the complainant that his grievance was denied because it had not been
timely filed.
17.
With respect to the
complainant’s allegation described in paragraph 2a, above, §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 . . . .
18.
At the hearing on
this matter, the complainant claimed he was not informed that he had the right
to require an open discussion on his grievance and that the convening of the
executive session was unnecessary and constituted a violation of the FOI Act.
19.
It is found however
that the executive session was a continuation of the February executive
session described in paragraph 8 through 11, above.
It is further found that the respondent convened in such executive
session for a permissible purpose and at the request of the complainant.
20.
With respect to the complainant’s allegation described in paragraph 2b and
2c, above, §1-231(a), G.S., provides
in relevant part that:
At 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 . . . .
21.
At the hearing on
this matter, the complainant argued that the respondents violated the
executive session provisions by inviting the chief and the captain into the
executive session because they had already expressed their views in open
session and that by excluding the complainant from that portion of the
executive session the respondents prevented him from being able to determine
if the chief or the captain made any negative statements regarding him.
22.
It is found that with
the exception of preliminary statements regarding the grievance, the process
was conducted in executive session with the complainant’s consent.
23.
It is found therefore
that the respondent was permitted pursuant to §1-231(b), G.S., to exclude the
complainant and his counsel from the executive session once their testimonies
and opinions had been provided.
24.
It is also found that
the respondent was permitted pursuant to §1-231(b), G.S., to invite the chief
and the captain to remain in the executive session to provide further
testimony and opinion to the exclusion of the complainant.
25.
With respect to the
complainant’s allegation described in paragraph 2d, above, it is found the
respondent commission did not vote during its questioning of the chief and
captain.
26.
It is found that the
complainant and his counsel were invited back into the executive session
immediately after the respondent commission concluded its questioning of the
chief and the captain.
27.
Furthermore, it is
found that the complainant failed to provide any evidence to support a finding
that the respondent commission voted in executive session.
28.
Consequently, it is
found that the respondent did not vote during the executive session as alleged
by the complainant.
29.
With respect to the
complainant’s allegations described in paragraph 2e, above, it is found that
the minutes of the meeting accurately reflect what transpired at that meeting.
30.
It is therefore
concluded that the respondents did not violate the FOI Act as alleged by the
complainant.
31.
Consequently the
complainant’s request for civil penalty is denied.
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 April 10, 2002.
_______________________________________
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:
Anita Carriero, Chairman, Police Commission, Borough
of Naugatuck; Ronald Gallant; Annette Woodfield; Curt Bosco; W.F. Dambowsky,
As Members, Police Commission, Borough of Naugatuck; Joan B. Taf, Mayor, and
member ex-officio, Police Commission, Borough of Naugatuck; and Police
Commission, Borough of Naugatuck
c/o M. Leonard Caine, III, Esq.
Caine & Caine
35 Porter Avenue
Naugatuck, CT 06770
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-199/FD/paj/4/11/2002