FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on November 6, 2003 at which time 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.  It is found that the complainant is a firefighter for the city of Bridgeport, and that she filed a grievance with the respondents on January 31, 2003 [hereinafter “the grievance”]. 

 

3.  It is found that the respondents scheduled a regular meeting for the evening of March 19, 2003, and that the agenda of such meeting indicated that the respondents would discuss pending grievances at such meeting.  It is found that, acting on a joint request from the fire chief and the firefighters union, the respondents tabled discussion of all such grievances until the April 23, 2003 meeting of the respondents. 

 

4.  It is found that the respondents scheduled a regular meeting for the evening of April 23, 2003, and that the agenda of such meeting indicated that the respondents would discuss the grievance at such meeting. 

 

5.  It is found that, on April 22, 2003, her union president informed the complainant that the respondents would discuss the grievance in executive session at the April 23, 2003 meeting.

 

6.  It is found that, during an earlier April 23, 2003, meeting on another matter among complainant’s counsel, the fire chief, and representatives of the city of Bridgeport, the fire chief informed the complainant’s counsel that the meeting scheduled for that evening was canceled due to lack of a quorum.   

 

7.  It is also found that, at such time, the complainant’s counsel and attorneys for the City of Bridgeport debated whether such cancellation was proper under §§1-228 and 1-229, G.S.  It is further found that, at such time, the complainant’s counsel informed all present at the meeting described in paragraph 6, above, that, at a minimum, the complainant expected the respondents to call the meeting to order on the record, then either proceed to meet, or adjourn or continue the grievance hearing. 

 

8.  It is found that, at the scheduled place and time of the April 23, 2003 regular meeting, the complainant, her counsel, and union representative appeared, as did the fire chief, the deputy fire chief, a fire lieutenant, the city attorney, the board clerk, and one fire commissioner.  It is also found that, at such time, the fire chief informed all present that there would be no meeting. 

 

9.  It is found that, by letter dated May 5, 2003, the complainant requested that the respondents provide her with copies of all agendas and minutes of the respondent board for the years 2002 and 2003.  It is also found that, by such letter, the complainant asked to be notified of all future meetings of the respondent board in writing. 

 

10.   It is found that, by letter dated May 6, 2003, the complainant requested that the respondents provide her with copies of all agendas and minutes of the respondent board for the year 2001. 

 

11.  It is found that the respondents have provided the complainant with copies of the requested minutes and agendas, with the exception of agendas for the following months:  April 2001, October 2001, March 2002, May 2002, November 2002, and January 2003.

 

12.  It is found that the respondent board held a regular meeting on May 21, 2003, at which time it discussed the grievance in open session, and voted to deny it.  It is found that the respondents did not notify the complainant of the May meeting, and that the complainant did not attend such meeting.  However, it is further found that the respondents notified the complainant’s union president about the May meeting, and that the union president attended such meeting and represented the complainant during the respondent’s discussion of the grievance.

 

13.  By complaint dated and filed with the Commission on May 23, 2003, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information [hereinafter “FOI”] Act as follows:

 

a.  “the activities of the fire chief and fire commissioners on March 19, April 23, and May 21, 2003, constituted a “meeting” or “other proceeding” pursuant to §§1-200(2);”

 

b.  failing “…to hold regular public meetings as required by §§1-230;”

 

c.  denying the “complainant the right under §1-200(6)(A) to have discussion of her grievances at an open meeting three times - on March 19, 2003, April 23, 2003, and May 21, 2003;”

 

d.  acting on, or approving action on, “complainant’s grievances without holding an open, public meeting per her request under §1-200(6)(A);”

 

e.  [(1)]“in advance of the April 23^rd public meeting, without a vote by two-thirds of the members of such body present and voting at a public meeting and stating the reasons for such executive session per §1-200(6), fire department personnel announced that the Board would discuss complainant’s grievances in executive session.  [(2)] In violation of Conn. Gen Stat. §1-200(6)(b)(1), when complainant invoked her right under the FOIA to demand an open meeting, the meeting was canceled to deny her a public hearing of her grievance;”

 

f.  “the failure of the Board to meet on April 23, 2003 was not an adjournment, because one Fire Commissioner (and the Board’s Clerk) were present, and (a) while the Board could have called an adjournment for lack of a quorum, the member said nothing; and (b) the member’s presence and the clerk’s silence precluded the alternative method of adjournment, which requires that ‘all members are absent from any regular meeting’ and that ‘the clerk or the secretary of such body’ declares the meeting adjourned….;”

 

g.  “if the April 23, 2003 meeting was a ‘continued hearing’ pursuant to …§1-2229…, then the respondent Board failed to issue a proper notice of continuance;”

 

h.  “by refusing to meet publicly on complainant’s grievances, the [respondent board] impaired her rights to an orderly and timely pursuit of her grievances and impaired her statutory right to accommodation in her employment…;”

 

i.  “by directing last minute cancellations of noticed public meetings, without proper notice and procedure, the City and its Fire chief delay or avoid public hearings and oversight of controversial employee grievances and claims adverse to or opposed by the Fire Chief and The City, all to the detriment of employees of the Bridgeport Fire Department, complaint, and Citizens of Bridgeport;”

 

j.  “…the Board fails to maintain complete and accurate records of its meetings as required by §1-225;” and

 

k.  “…[(1)]the Board failed to disclose public records and [(2)] provide timely advance notices as required by §§1-206, 1-210, and 1-227.”

 

The complainant requested that civil penalties be imposed in this matter and that the Commission admonish the City of Bridgeport and its attorneys for flagrant violations of the FOI Act, in light of Docket #FIC2002-034; MariAn Gail Brown, Michael P. Mayko and Connecticut Post v. Michael Lupkas, Comptroller, City of Bridgeport; Christopher Duby, Chief of Staff, City of Bridgeport; Mark Anastasi, City Attorney, City of Bridgeport; and Gregory Conte, Deputy Chief of Staff, City of Bridgeport.  The complainant requested that the Commission declare null and void any actions the respondents took or ratified on the grievance.

 

14.  With respect to the complainant’s allegations as described in paragraph 13.a, it is concluded that the complainant has failed to allege any conduct on the part of the respondents that violates any provision of the FOI Act

                                                           

15.  With respect to the complainant’s allegation as described in paragraph 13.b, [1] 13.e.2, 13.h, and 13.i, above, it is found that the crux of the complainant’s complaint is that the respondents did not have a meeting to address the grievance in a timely manner, and further that the FOI Act requires that the respondents meet.

 

16.  It is concluded that no provision of the FOI Act relevant to this complaint requires or dictates when “public agencies” should meet.  However, the FOI Act requires that when “public agencies” meet, such meetings must comply with the FOI Act, unless an exception applies. 

 

17.  With respect to the complainant’s allegations as described in paragraph 13.b, 13.e.2, 13.h, and 13.i, above, it is concluded that the complainant has failed to allege any conduct on the part of the respondents, that even if proven, violates any provision of the FOI Act.  These issues are not governed by the FOI Act and consequently, this Commission has no authority to address them.

 

18.  With respect to the complainant’s allegations as described in paragraph 13.c, 13.d, and 13.e.i, §§1-225, 1-200(6)(A), 1-200(2), and 1-225(f), G.S., are implicated.

 

19.  Section 1-225(a), G.G. provides in pertinent 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…”

 

20.  Section 1-200(2), G.S., defines “meeting” to mean:

 

“…any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power….” 

 

21.  Section 1-200(6)(A), G.S. defines “executive session” to include:

 

“…[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…”

 

            22.  Section 1-225(f), G.S., provides in relevant part that: “[a] public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.”

 

23.  It is concluded that §1-200(6)(A), G.S., provides a public employee with the right to require that the discussions set forth therein concerning such employee be conducted in the open, but it does not confer upon such employee the right to determine the date of such discussion.

 

24.  With respect to the allegation described in paragraph 13.c, above, it is found that the grievance was not discussed at the respondent board’s March 19, 2003 meeting.  It is also found that the respondent board did not meet on April 23, 2003.  It is further found that the respondent board discussed the grievance at its open session of May 21, 2003.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 13.c, above.

 

25.  With respect to the allegation described in paragraph 13.d, above, it is found that the respondents did not act on, or approve acting on, the grievance without holding an open meeting.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 13.d, above.

 

26.  With respect to the allegation described in paragraph 13.e.1, above, it is concluded that the basis of such allegation is the complainant’s belief that a public agency must take a two-thirds vote before notifying a public employee that it intends to enter executive session to discuss such employee.  However, it is concluded that §1-225(f), G.S., requires that an affirmative vote of two-thirds of the members of a public agency at the time of a meeting.  It is also found, as described in paragraph 24, above, that there was no meeting and, accordingly, no executive session on April 23, 2003.  It is also found that the FOI Act does not preclude the respondent board from designating fire department personnel to accomplish the necessary employee notifications when an executive session is anticipated.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 13.e.1, above.

 

27.  With respect to the allegation described in paragraph 13.f and 13.g, above, §§1-228 and 1-229, G.S., are implicated.

 

28.  Section 1-228, G.S., provides in relevant part:

 

[t]he public agency may adjourn any regular or special meeting to a time and place specified in the order of adjournment.  Less than a quorum may so adjourn from time to time.  If all members are absent from any regular meeting the clerk or the secretary of such body may declare the meeting adjourned to a stated time and place and shall cause a written notice of the adjournment to be given in the same manner as provided in section 1-225, for special meetings, unless such notice is waived as provided for special meetings….

 

            29.  Section 1-229, G.S., provides in relevant part: 

 

[a]ny hearing being held, or noticed or ordered to be held, by the public agency at any meeting may by order or notice of continuance be continued or recontinued to any subsequent meeting of such agency in the same manner and to the same extent set forth in section 1-228, for the adjournment of meeting….

 

30.  It is found that the April 23, 2003 meeting was cancelled due to lack of a quorum.  It is concluded that the FOI Act does not require that a public agency meet to cancel a meeting.  It is found that the respondents did not intend to meet to cancel the April 23, 2003 meeting, and did so only at the insistence of complainant’s counsel. 

 

31.  Nevertheless, the complainant alleges that the actions described in paragraph 8, above, violated the FOI Act, because the one member of the respondent board who was present, did not announce the adjournment of the meeting, rather the fire chief made such announcement.  However, it is concluded that §§1-228 and 1-229, G.S., do not require that a board member personally announce an adjournment or continuance.  Based on the facts and circumstances of this case, the Commission declines to read such a narrow meaning into such provisions.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 13.f and 13.g., above.

 

32.  With respect to the allegation described in paragraph 13.j, above, it is found that there is no evidence in the record to suggest that the Board fails to maintain complete and accurate records of its meetings as required by §1-225, G.S.  Accordingly, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 13.j, above.

 

33.  Section 1-210(a), G.S., provides in relevant part:

 

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212…Each such agency shall make, keep and maintain a record of the proceedings of its meetings. 

 

34.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record….”

 

35.  With respect to the allegation in paragraph 13.k.1, above, the complainant conceded at the hearing in this matter that she had received all requested records except the agendas for the meetings, as described in paragraph 11, above.  It is found that such meetings did not take place, and it is further found that at the time of the complainant’s request described in paragraphs 9 and 10, above, the agendas for such meetings were no longer in existence.  It is also found that, at the time of such request, it was the policy of the respondents to edit unused agendas for use at subsequent meetings, and not to retain a copy of the unused agendas.

 

36.  It is concluded that, with respect to the six meetings described in paragraph 11, above, the respondents failed to keep and maintain a record of such proceedings, within the meaning of §1-210(a), G.S.  Accordingly, it is concluded that the respondents violated the FOI Act, as alleged in paragraph 13.k.1, above.  At the hearing in this matter, the respondents informed the Commission that it is now their policy to keep and maintain even unused agendas for public inspection. 

 

37.  Section 1-227, G.S., provides in relevant part that a public agency “shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting….Any request for notice filed pursuant to this section shall be valid for one year from the date on which it is filed unless a renewal request is filed….

 

38.  With respect to the allegation in paragraph 13.k.2, above, it is found that the complainant made a request for notice of regular and special meetings pursuant to §1-227, G.S., on May 5, 2003, as described in paragraph 9, above.  It is further found that such request is valid until May 5, 2004. 

 

39.  It is found that the respondents provided notice of the May 21, 2003, meeting to the complainant through her union representative.  However, it is also found that such notice does not meet the technical requirements of §1-227, G.S.  Accordingly, it is concluded that the respondents violated the FOI Act, as alleged in paragraph 13.k.2, above, by failing to provide the complainant with written, mailed notice of the May 21, 2003 meeting. 

 

40.  The Commission declines to impose civil penalties, issue admonishments, or declare null and void any actions of the respondents in this matter.

 

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

1.  Forthwith, the respondents shall provide the complainant with notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, until May 5, 2004. 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of January 14, 2004.

 

 

___________________________________

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:

 

Elizabeth O’Connell

c/o Susan V. Wallace, Esq.

11 Blue Orchard Drive

Middletown, CT  06457

 

Chairman, Board of Fire Commissioners,

City of Bridgeport; and Board of Fire

Commissioners, City of Bridgeport

c/o John H. Barton, Esq.

Office of the City Attorney

999 Broad Street, 2nd Floor

Bridgeport, CT  06604

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-189/FD/abg/01/16/2004