FIC2002-008

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Marlin James Lively,
		Complainants
	against		Docket #FIC 2002-008
Mary Moran, Chairman, Police Commission, Town of Trumbull; John Riordan, James McNamara, Lino Constantini, David Wilson, as Members, Police Commission, Town of Trumbull; and Police Commission, Town of Trumbull,
		Respondents	December 11, 2002

The above-captioned matter was heard as a contested case on September 4, 2002, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. For purposes of hearing, this case was consolidated with Docket #FIC 2002-009; Marlin James Lively v. Mary Moran, Chairman, Police Commission, Town of Trumbull; John Riordan; James McNamara; Lino Constantini; David Wilson, as members, Police Commission, Town of Trumbull; and Police Commission, Town of Trumbull.

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 of complaint dated December 31, 2001, and filed with the Commission on January 7, 2002, the complainant alleged that the respondents violated the Freedom of Information [hereinafter “FOI”] Act with respect to a December 12, 2001, meeting by not notifying him in writing that his employment would be discussed during an executive session prior to such session; by excluding the complainant from the executive session, and by failing to post motions and votes of such meeting within forty-eight hours. The complainant requested that all actions taken at the December 12, 2001, meeting of the respondent commission be declared null and void; the complainant also asked that the named respondents be assessed civil penalties and that he be awarded costs and attorney’s fees.

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….

5. It is found that the complainant was acting chief of the Trumbull police department on December 11, 2001. It is also found that the complainant and the respondent chairman met on December 11, 2001, in the complainant’s office. There was conflicting testimony at the hearing in this matter as to what information was given to the complainant at such time; however, it is found that the respondent chairman informed the complainant that his job performance would be discussed under the agenda item “executive session personnel matters” at the meeting of December 12, 2001; that there was concern as to the complainant’s ability to perform his job because of his claim in a federal lawsuit filed against the respondent commission that he had suffered emotional distress; that there was concern, because of such claim, about the complainant carrying a weapon; that the commission was contemplating placing the complainant on administrative leave at the December 12, 2001 meeting; and that the complainant might want to have an attorney with him at the December 12, 2001 meeting.

6. It is found that the complainant and his attorney attended the regular meeting of the respondent commission on December 12, 2001. It is also found that, during such meeting, the respondent Wilson made a motion to convene in executive session for the stated purpose of discussing “personnel matters” [hereinafter “the first executive session”]. It is found that the respondent commission thereupon voted to convene in such session. It is found that the respondent commission did not specify which personnel matters were to be discussed in such session, nor did the respondent commission inform the complainant or any other staff member who might be discussed therein that such person could require that such discussion be held during open session. It is also found that, notwithstanding the fact the complainant had been informed that his job performance would be discussed under “personnel matters,” neither the complainant nor his attorney objected to the executive session at such time.

7. It is found that the first executive session lasted approximately one hour and included the members of the respondent commission, the first selectman, and at times, the town attorney and the town labor attorney. It is also found that, upon returning to public session, the complainant’s attorney objected to the participation of commissioner Constantini, in any discussion concerning the complainant, including the first executive session, on the grounds of a conflict of interest. It is also found that commissioner Moore, a member of the respondent commission not individually named as party, objected to the first executive session at such time. It is further found that, after some discussion as to the by-laws, commissioner Wilson then stated, “I would like to move ahead with this and ask Chief Lively if he would like the rest of our conversation to be a public session or whether it be in executive session…”

8. It is found that the complainant’s attorney then elected that the discussion be conducted in executive session and that, thereupon, the respondent commission, the first selectman, the town attorney, the complainant, and his attorney convened in executive session [hereinafter “the second executive session.”] It is found that such session lasted a minimum number of minutes, and that, upon entering such session, the complainant was informed that he would be placed on administrative leave with full wage benefits and be required to submit to a fitness for duty review.

9. It is found that, upon reconvening in open session, the respondent commission voted to place the complainant on administrative leave with full wage benefits. It is found that the respondent commission then voted to have a fitness for duty review for the complainant.

10. With respect to the complainant’s allegation that he was improperly excluded from the first executive session, §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…..

11. It is concluded that the complainant has no independent right under the FOI Act to attend any executive session of the respondent commission, including a discussion of his job performance. Accordingly, it is further concluded that the respondents did not violate the FOI Act, as alleged in paragraphs 2 and 10, above.

12. With respect to the complainant’s allegation that he was not notified in writing that his employment would be discussed during an executive session prior to such session, it is concluded that the FOI Act does not require written notification; however, a public agency must provide meaningful notification to an employee before entering executive session to discuss such employee.

13. The respondents contend that the first executive session was convened to discuss strategy and negotiations with respect to pending litigation, within the meaning of §1-200(6)(B), G.S.

14. It is found that the complainant and the respondent commission are parties in a federal lawsuit that is pending, which the complainant brought, and in which the complainant claimed that he suffered emotional distress caused by the respondent commission.

15. There was conflicting testimony at the hearing as to what was actually discussed during the first executive session. However, it is found that both the lawsuit and the complainant’s employment were discussed therein within the meaning of §§1-200(6)(B) and 1-200(6)(A), G.S.

16. It is found that, notwithstanding the discussion between the respondent chairman and the complainant on December 11, 2001, described in paragraph 5, above, the complainant did not question, or object to, the first executive session until after it ended, as described in paragraphs 6 and 7, above. Based upon the facts and circumstances of this case, it is found that the respondents provided the complainant with meaningful notification that his employment would be discussed in the first executive session, within the meaning of §1-200(6)(B), G.S. Accordingly, it is concluded that the respondents did not violate the FOI Act, as so alleged by the complainant.

17. With respect to the complainant’s allegation that the respondents failed to post motions and votes of the December 12, 2001, meeting within forty-eight hours, §1-225(a), G.S., provides in relevant part that: “[t]he votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours.”

18. It is found that the record of votes of the December 12, 2001, meeting was made available on December 18, 2001. It is also found that such record fails to indicate the vote to enter the first executive session. Accordingly, it is concluded that the respondents violated §1-225(a), G.S., by failing to timely make available such record within forty-eight hours.

19. It is found that, subsequent to the meeting of December 12, 2001, the complainant filed a separate lawsuit in federal court by which he seeks to reverse the actions taken by the respondents relative to his employment at such meeting. It is found that such matter was pending at the time of the hearing in this matter.

20. The Commission declines to declare null and void the actions taken by the respondents at its December 12, 2001, meeting.

21. The Commission declines to assess civil penalties in this matter, and is without jurisdiction to assess costs and attorney’s fees.

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

1. The respondent commission shall forthwith amend its meeting minutes of December 12, 2001, to accurately reflect the vote to convene in the first executive session.

Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 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:

Marlin James Lively

c/o Thomas E. Minogue, Jr., Esq.

2425 Post Road

Southport, CT 06490

Mary Moran, Chairman, Police

Commission, Town of Trumbull;

John Riordan, James McNamara,

Lino Constantini, David Wilson,

as Members, Police Commission,

Town of Trumbull; and Police

Commission, Town of Trumbull

c/o Vito Mazza, Esq.

PO Box 542

Trumbull, CT 06611

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2002-008/FD/paj/12/12/2002