FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

  

The above-captioned matter was heard as a contested case on September 13, 2004, 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, postmarked, and therefore, filed on December 17, 2003, the complainant appealed, alleging that the respondent violated the Freedom of Information Act (“FOI”) on November 17, 2003 by:

 

a.                            discussing an ethics complaint in executive session, a topic not permitted for an executive session discussion, within the meaning of §1-200(6), G.S.; and

b.                            failing to state the purpose of the executive session, within the meaning of §1-225(f), G.S.

The complainant requested in its complaint that the decision made by the respondent on November 17, 2003 be declared null and void, that the respondent be directed to consider the ethics complaint at a public meeting, and that whatever civil penalties are appropriate be imposed upon the respondent.

3.  It is found that on September 23, 2003, tenants of the Riverside Tenants Association filed a complaint with the respondent, which complaint alleged a conflict of interest regarding the appointment of the Mayor of Ansonia’s wife to the Ansonia Housing Authority Board of Commissioners (hereinafter “ethics complaint”).

 

4.   It is found that the respondent then held a special meeting on November 17, 2003 during which it convened in executive session and conducted an investigation into the alleged conflict of interest.  Only members of the respondent and corporation counsel, at the invitation of the respondent, were permitted in the executive session.  Following the executive session, the respondent announced during the open portion of the meeting that after reviewing the ethics complaint no finding of a conflict of interest could be made.  

 

5.  The complainant contends that the discussion of the ethics complaint should have taken place at an open meeting because such discussion did not qualify for an executive session.  In this regard, the complainant references §1-225, G.S., which provides, in relevant part that:

 

(a) the meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public.

 

(f)  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.

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

“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;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

7.  The respondent contends that it discussed the ethics complaint pursuant to §7-148h, G.S., which permits a confidential discussion in executive session.

 

8.  Section 7-148h, G.S., in relevant part, provides:

(a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause…. 

[Emphasis added.]

 

9.  Section 1-82a, G.S., provides, in relevant part:

(b) An investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.

(c) Not later than three business days after the termination of the investigation, the commission shall inform the complainant and the respondent of its finding and provide them a summary of its reasons for making that finding. The commission shall publish its finding upon the respondent's request and may also publish a summary of its reasons for making such finding.

(d) If the commission makes a finding of no probable cause, the complaint and the record of its investigation shall remain confidential, except upon the request of the respondent and except that some or all of the record may be used in subsequent proceedings. No complainant, respondent, witness, designated party, or commission or staff member shall disclose to any third party any information learned from the investigation, including knowledge of the existence of a complaint, which the disclosing party would not otherwise have known. If such a disclosure is made, the commission may, after consultation with the respondent if the respondent is not the source of the disclosure, publish its finding and a summary of its reasons therefor.  [Emphasis added.]

10.  It is found that the investigation and discussion of the ethics complaint conducted in private by the respondent on November 17, 2003 was convened and conducted confidentially as permitted by §§7-148h and 1-82a, G.S.  It is found however, that the respondent’s use of the term “executive session” to describe the confidential ethics complaint investigation has led to confusion.  The respondent should have described the ethics complaint investigation as being convened pursuant to the provisions of §§7-148h and 1-82a, G.S., and not pursuant to the “executive session” provisions of the FOI Act.

 

11.  It is therefore, concluded that because §§7-148h and 1-82a, G.S., govern the ethics complaint investigation and discussion held on November 17, 2003, the respondent did not violate the open meetings provisions of the FOI Act as alleged in the complaint.

 

12.  In its post-hearing brief, the respondent requested that the Commission impose a civil penalty upon the complainant.

 

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

 

If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.  [Emphasis added].

 

14.  It is found that the complainant did not take this appeal frivolously, without reasonable grounds and solely for harassing the respondent.  Consequently, no civil penalty is warranted, and therefore, the respondent’s request for such penalty is denied.

 

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

 

1.  The complaint is hereby dismissed.

 

2.  This decision is not intended to, and should not be construed as commenting in any way on the merits of the complainant’s ethics complaint, as described in paragraph 3, of the findings, above. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 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:

 

            Riverside Tenants Association

c/o Jane Grossman, Esq.

New Haven Legal Assistance Association Inc.

426 State Street

New Haven, CT 06510

 

Board of Ethics,

City of Ansonia

c/o Kevin M. Blake, Esq.

Shepro & Blake, LLC

2051 Main Street

Stratford, CT 06615-6341

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2003-449FD/paj/10/29/2004