FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on May 23, 2002, 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.

 

            2.  By letter of complaint, dated March 30, 2002, and filed with the Commission on April 4, 2002, the complainant appealed, alleging that the respondent violated the Freedom of Information (“FOI”) Act on March 19, 2002 by discussing certain police officers during an executive session held on that date without first notifying such officers that they would be discussed in the executive session.

 

            3.  It is found that the complainant is the President of Local #895, the union with which the employees who were allegedly discussed in executive session are affiliated.

 

            4.  It is also found that the complainant filed this complaint on behalf of the employees described in paragraph 3, above, and in his capacity as President of the union representing the interest of such employees.

 

5.  It is found that on March 19, 2002 during a regular meeting, the respondent convened in executive session and at that time the deputy chief of police made an oral presentation to the members of the respondent in connection with Internal Affairs (“IA”) Investigation # 01-03, and also provided a copy of the IA report concerning such investigation to each member of the respondent.  It is found that the investigation and report resulted from a complaint filed in August 2001 by certain police officers against other officers, alleging cheating among police officers on an April 2001 promotional exam for Lieutenant.  It is found that the investigation was completed in September 2001 and a pre-disciplinary hearing was held in February 2002.  It is found that two police officers, Sergeants Ralph Angelo and Anthony Guistinello, were the subjects of the investigation and report and the ones who allegedly engaged in the misconduct.  It is found that on March 18, 2002, the chief of police informed the respondent that he recommended discipline in excess of ten days for the officers concerned and that because such a recommendation exceeded the authority granted him under the union contract he was therefore requesting that the respondent set this matter down for a hearing to determine whether or not discipline should be imposed. 

 

            6.  The respondent contends that the executive session was held for the purpose of discussing “pending litigation” within the meaning of §1-200(9)(C), G.S., and that during the executive session the respondent discussed whether a hearing would be needed in connection with the investigation and who would be called as witnesses at such a hearing.  The respondent further contends that the two police officers were only mentioned as a part of the report and were not discussed within the meaning of §1-200(6)(A), G.S.

 

            7.  Section 1-200(6)(A), G.S., permits an executive session for “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.”

 

            8.  It is found that the respondent’s discussion of the IA investigation and report implicated the “employment” of the two employees concerned, and constituted discussion concerning the employment, performance, evaluation, or dismissal of Angelo and Guistinello, within the meaning of §1-200(6)(A), G.S.

 

            9.  It is also found that the respondent did not provide notice to Angelo and Guistinello that such discussion would take place and that they could “require that the discussion be held at an open meeting.”

 

            10.  Consequently, it is concluded that the respondent violated §1-200(6)(A), G.S.

 

            11.  With respect to the respondent’s contention that the purpose of the executive session was to discuss “pending litigation” it is concluded that the respondent failed to prove this. 

 

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

 

            1.  Henceforth, the respondent shall strictly comply with the executive session provisions set forth at §1-200(6)(A), G.S.

 

            2.  The Commission takes this opportunity to remind the respondent that in accordance with §1-225(f), G.S., the purpose of an executive session must be stated prior to convening in executive session.  In this case it would have been appropriate for the respondent’s agenda and minutes to specifically state that the purpose of the executive session was personnel discussion in connection with IA report # 01-03.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

March 26, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Walter S. Casey

West Haven Police Department

355 Main Street

West Haven, CT  06516

 

Board of Police Commissioners,

Town of West Haven

c/o Henry C. Szadkowski, Esq.

West Haven Corporation Counsel

355 Main Street

West Haven, CT 06516

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-152FD/abg/03/27/2003