FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on September 28, 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.  It is found that the complainant is a member of the respondent commission.

 

3.  By letter of complaint dated May 3, 2004, and filed with the Commission on May 14, 2004, the complainant alleged that the respondent violated the Freedom of Information Act with respect to an April 19, 2004, meeting by conducting an illegal executive session [hereinafter “the session”].  Specifically, the complainant alleged that the session concerned his performance but that he was not given proper notice that he would be the subject of the session and that he was not given the opportunity to require that the session be held in the open.  Additionally, although not as clear, the complainant also contended that the session was improperly conducted to discuss comments that the complainant had previously made that “might” become the subject of litigation.  At the hearing, the complainant abandoned additional allegations raised in the complaint; accordingly, such allegations will not be further addressed herein. 

 

4.  At the hearing on this matter, and on brief, the complainant also contended that the respondent did not state the reason for entering the session, did not vote to enter the session by a two-thirds majority, and did not limit attendance at the session to members of the respondent and those providing opinion or testimony.  Since such allegations were not fairly raised in the complaint, they will not be further addressed herein.    

 

5.  Section 1-225(a), G.S., provides, in relevant part:

 

[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….

 

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

 

…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 his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled….

 

7.  It is found that the respondent held a regular meeting on April 19, 2004, and that, during such meeting, the respondent voted to convene in executive session for the stated purpose of discussing “certain topics of a legal nature or other matters.”  It is also found that during such session, the members of the respondent, including the complainant, and town counsel discussed whether the complainant should recuse himself from participating in an upcoming issue so as to avoid the possibility of litigation. 

 

8.  The respondent contends that the complainant’s performance was not discussed during the session at issue, but rather that the purpose of such session was to discuss a way to avoid possible litigation. 

 

9.  It is found that the respondent did not discuss the performance of the complainant during the session, within the meaning of §1-200(6)(A), G.S., as alleged in the complaint. 

 

10.  Section 1-200(9), G.S., defines “pending litigation” to mean  “(A)  a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency;  (B)  the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right;  or (C)  the agency's consideration of action to enforce or implement legal relief or a legal right.”

 

11.  It is found that the chairman of the respondent had received an oral warning that the respondent might be sued if the complainant failed to recuse himself from participating in the issue described in paragraph 7, above.  However, it is also found that such warning did not rise to the level of “pending litigation” within the meaning of §1-200(9), G.S. 

 

12.  It is therefore concluded that the respondent violated the provisions of §§1-225(a) and 1-200(6), G.S., by conducting the session for an improper purpose. 

 

            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 provisions of §§1-225(a) and 1-200(6), G.S.

   

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 2005.

 

________________________________

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:

 

Gordon McCurdy

59 Christian Hill Road

Higganum, CT 06441

 

Planning and Zoning Commission,

Town of Haddam

c/o Bruno R. Morasutti, Esq.

Luby Olson, PC

405 Broad Street

PO Box 2695

Meriden, CT 06450-1695

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-229FD/paj/3/10/2005