FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on November 15, 2002, and June 23, 2003, at which times the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

            2.  By letter dated and filed July 25, 2002, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act by conducting an improper June 20, 2002 executive session and by failing to notify him that his performance would be discussed in such executive session.  The complainant further alleged that he first learned of such alleged discussion on June 28, 2002. 

 

3.  It is found that the respondent board held a regular meeting on June 20, 2002, during which it convened in executive session for the stated purpose of “personnel issues and contractual matters” [hereinafter “the executive session”].  The respondent contends that the complaint in this matter was not timely filed, since it was filed more than thirty days after the June 20, 2002, meeting of the respondent board. 

 

4.  Section 1-206(b)(1), provides in pertinent part that:

 

Any person…wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the [FOI] Act may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held. 

 

            5.  It is found that the complainant had no notice of the executive session prior to the June 20, 2002 meeting of the respondent board. 

 

6.  It is found that the neither the agenda nor the minutes of the June 20, 2002 meeting of the respondent board indicate what contractual matter the board discussed in the executive session.  It is found, however, that the respondent board discussed a contract with its custodial union in the executive session.  It is further found that, technically, such discussion is not appropriate for executive session.  Rather, a discussion of strategy or negotiations with respect to collective bargaining does not constitute a “meeting” within the meaning of §1-200(2), G.S.

 

7.  It is found that neither the agenda nor the minutes of the June 20, 2002 meeting of the respondent board indicate which public officer or public employee was the subject of the personnel discussion portion of the executive session.

 

8.  It is therefore found that neither the agenda nor the minutes reasonably apprise the public of the purpose of the executive session. 

 

9.  It is concluded that since the stated purpose of the June 20, 2002 executive session refers only to personnel issues and contractual matters and the minutes of the June 20, 2002 meeting do not inform the public of the personnel or the contract discussed, the respondent’s discussion of such matters in the executive session constituted a secret or unnoticed meeting within the meaning of §1-206(b)(1), G.S. 

 

10.  It is found that the complainant learned of the secret or unnoticed meeting during which his performance was allegedly discussed on June 28, 2002, during a meeting with the First Selectman of New Fairfield, who was in attendance during a portion of the executive session, at the invitation of the respondent.  The complaint in this matter was filed July 25, 2002, less than thirty days after the complainant had notice of the secret or unnoticed meeting.   

 

11.  It is concluded therefore that the Commission has jurisdiction to hear this appeal, pursuant to §1-206(b)(1), G.S. 

 

12.  It is found that, at the time of the June 20, 2002 meeting of the respondent, the complainant was a co-chairman of the Permanent Building Committee and that, as such, he was a New Fairfield public official.   It is also found that the respondent has no authority over the Permanent Building Committee or appointments thereto.

13.  Section 1-225(a), G.S., provides in relevant part that “[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.” 

 

14.  Section 1-200(6), G.S., provides in relevant part that executive session means a meeting of a public agency at which the public is excluded for “(A) [d]iscussion 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 . . . .”

 

15.  It is found that the respondent convened in executive session to discuss the performance of one of its members, Teri Yonsky, who had declared she was considering resigning, and possibly filing a lawsuit, due to problems she had in dealing with the Permanent Building Committee. 

 

16.  It is found that during the discussion described in paragraph 15, the complainant was discussed, and Ms. Yonksy detailed her problems in dealing with him.  It is also found that e-mails authored by the complainant were reviewed during the executive session and that a draft letter to the first selectman regarding the complainant’s appointment as a public official was reviewed and discussed during the executive session. 

 

17.  It is found that, as a result of the discussion described in paragraphs 15 and 16, above, it was decided that a round table discussion was in order to air out perceived problems between the Permanent Building Committee and the respondent board.  It is further found that such discussion took place at a later date and that the complainant in this matter participated in such discussion.

 

18.  The respondent contends that the purpose of the executive session was to discuss the personnel issues of Ms. Yonksy, and that the discussion of the complainant was incidental, but necessary, to the discussion of Ms. Yonsky’s personnel problems.  Therefore, the respondent contends that there was no need to notify the complainant of the executive session prior to the June 20, 2002 meeting. 

 

19.  It is found that, while the intended purpose of the executive session was to discuss Ms. Yonsky’s personnel issues, it is clear that the respondent also anticipated discussing the complainant, as evidenced by the review of the e-mails and draft letter described in paragraph 16, above.  It is further found that such discussion of the complainant was not incidental, but substantial.

 

20.  It is found that, since the complainant was not a public official under the control or authority of the respondent board, the discussion of him, as described in paragraphs 15 and 16, above, was not a permitted purpose under §1-200(6)(A), G.S.  It is also found that the discussion of the custodial union contract described in paragraph 6, above, was not a permitted purpose under §1-200(6), G.S. 

 

21.  Accordingly, it is concluded that the respondent violated §1-225(a), G.S., by discussing the complainant and the contract issue during the executive session.

 

22.  It is found that, since the complainant was not a public officer under the control or authority of the respondent, the respondent technically was not required by §§1-200(6)(A), G.S., to notify him of the executive session prior to the June 20, 2002 meeting. 

 

23.  Accordingly, it is concluded that the respondent did not violate the FOI Act by failing to notify the complainant of the anticipated executive session discussion prior to the June 20, 2002 meeting, as alleged in the complaint.

 

Based upon the record concerning the above-captioned complaint, no order by the Commission is hereby recommended. 

 

 

 

 

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

July 9, 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:

 

Russell Strilowich

PO Box 8886

New Fairfield, CT  06812-8886

 

Board of Education,

New Fairfield Public Schools

c/o Donald W. Strickland, Esq.

Siegel, O’Connor, Zangari,

O’Donnell & Beck, P.C.

150 Trumbull Street

Hartford, CT  06103

 

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2002-339FD/abg/07/11/2003