FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 28, at which time the complainants 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 of complaint filed October 29, 2003, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act at its October 8, 2003 meeting by convening in executive session to receive legal advice regarding a personnel issue, and by failing to identify on its agenda the individual employee who was to be discussed.  The complainants requested that the respondent be ordered to name the person discussed in executive session, to comply with the FOI Act with regard to its agendas and meetings, and to disclose the content of the discussion during the executive session.

 

3.  It is found that the respondent filed a notice of an October 8, 2003 special meeting that listed the following business to be transacted:

 

1.      Call to order.

2.      Pledge of Allegiance.

3.      Discussion/possible action regarding personnel matters.

4.      It is anticipated that there may be an Executive Session.

5.      Adjournment.

 

 

4.  It is found that complainant Dalena, who reports on the respondent and is familiar with its business, attended the respondent’s October 8, 2003 special meeting in part because he could not determine from the notice what business would be transacted by the respondent.

 

5.  It is found that the respondent convened in executive session at its special meeting on October 8, 2003, “to invite or get legal advice from our attorney with regard to a personnel matter.”

 

6.  It is found that the purpose of the executive session was to discuss procedures to be followed at a subsequent meeting concerning the discipline of a certain police officer, and to discuss the possibility of bias or recusal by members of the respondent.

 

7.  It is found that the respondent did not discuss the individual police officer or his conduct, and consequently did not notify the officer that he would be discussed in executive session.

 

8.  The complainants maintain that the respondent violated §§1-225(a) and 1-231(b), G.S., by convening in executive session to receive legal advice from counsel, because the executive session was not for a purpose explicitly permitted pursuant to §1-200(6), G.S.  Specifically the complainants argue that the executive session was not permitted by §1-200(6)(A), G.S., because the respondent did not discuss the conduct or performance of any individual employee.

 

9.  The respondent maintains that the executive session was permitted by §1-231(b), G.S., because its discussion of procedures to be followed in examining the conduct of the police officer fell within the language of §1-200(6)(A), G.S.

 

10.  Section 1-225(a), G.S. provides in relevant part:  “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

11.  Section 1-200(6), G.S., provides:

 

“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 …. 

 

12.  Section 1-231(b), G.S., provides:

 

An executive session may not be convened to receive or discuss oral communications that would otherwise be privileged by the attorney-client relationship if the agency were a nongovernmental entity, unless the executive session is for a purpose explicitly permitted pursuant to subdivision (6) of section 1-200. 

 

13.  Although the respondent argued generally that it should be able to receive private advice from its attorney, it offered no evidence of any written legal advice it received. 

 

14.  It is concluded that the permissibility of the respondent’s executive session turns solely on the issue of whether §1-200(6)(A), G.S., permits an executive session to discuss procedures to be followed in disciplining a public employee, where neither the employee himself nor his conduct are discussed.

 

15.  In Docket #FIC 94-361, Chris Morrill and The Hartford Courant v. Windsor Locks Board of Police Commissioners, the Commission concluded that a board of police commissioners violated §§1-21(a) and 1-18a(e)(1), G.S., [now §1-225(a) and 1-200(6)(A), G.S.] when it discussed overtime issues generally in executive session without discussing any individual employees.

 

16.  In Docket #FIC 91-148, Francis T. D'Onofrio v. Southington Town Council, the Commission concluded that a town council violated §§1-21(a) and 1-18a(e)(1), G.S., [now §1-225(a) and 1-200(6)(A), G.S.] when it discussed staffing levels and staff reductions without discussing any individual employees.  See similarly, Docket #86-101, John O. Bailey, Josh Kovner and The Jackson Newspapers v. West Haven Board of Education.

 

17.  It is concluded that, consistent with the Commission precedent cited above, an agency may not permissibly convene in executive session pursuant to §1-200(6)(A), G.S., without discussing an individual whose privacy might be affected by conducting that discussion in open session.

 

18.  The respondent maintains that no employee had the right to demand that the respondent’s executive session be conducted in public, because no employee’s conduct was discussed.

 

19.  It is found, however, that the absence of any requirement in this case to notify an employee that he would be discussed in executive session proves that no employee was in fact discussed, and that therefore the executive session did not fall within the ambit of §1-200(6)(A), G.S.

 

20.  It is therefore concluded that the respondent violated §§1-231, 1-225 and 1-200(6)(A), G.S., when it convened in executive session to receive oral legal advice concerning procedures to be followed in a subsequent meeting that would address the discipline of a public employee.

 

21.  In their complaint, the complainants also alleged that the respondent violated the FOI Act by failing to identify the individual to be discussed in executive session.  However, since no individual was discussed, this allegation need not be addressed.

 

            22.  Also in their complaint, the complainants requested that the respondent be ordered to disclose the content of the discussion in executive session.

 

23.  Section 1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.

 

24.  It is found that, to rectify the denial of the complainants’ right to attend the improper executive session described in the findings above, it is appropriate to order the respondent to disclose the content of its discussion at the October 8, 2003 executive session to the same extent that attendance at the session would have revealed that content.

 

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 requirements of §§1-231, 1-225 and 1-200(6)(A), G.S.

 

            2.  The respondent shall forthwith provide to the complainants, in writing, a record of the content of its discussion at the October 8, 2003 executive session described in the findings, above.  Such record shall disclose the content of that discussion to the same extent as attendance at the executive session would have revealed the content of the discussion to the complainants.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 2004.

 

________________________________

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:

 

Douglas Dalena and

Waterbury Republican-American

c/o Thomas G. Parisot, Esq.

Secor, Cassidy & McPartland, P.C.

41 Church Street

PO Box 2818

Waterbury, CT 06723-2818

 

Board of Police Commissioners,

Borough of Naugatuck

c/o Michael A. Albis, Esq.

Hilcoff & Albis, LLC

58 Edward Street

East Haven, CT 06512

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2003-385FD/paj/9/28/2004