FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on April 6, 2005, at which time 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.      It is found that the respondent is a public agency within the meaning of §1-200(1), G.S.

 

2.      It is found that the respondent held a special meeting on July 21, 2004, at which it convened in executive session to discuss a personnel matter involving a Steven Rowland.

 

3.      It is found that at the conclusion of the executive session, the respondent reconvened in open session and a member of the respondent read the following statement: “Accusations were made which the Board of Selectmen unanimously determined were unfounded and the Board of Selectmen found no basis for a referral to the Board of Ethics.”

 

4.      By an undated letter filed on August 17, 2004, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:

 

a.       voting in executive session; and

 

b.      by allowing the 10 to 15 people invited into the executive session to remain in executive session beyond the period required for them to give their testimony or opinion. 

 

At the hearing on this matter, the complainant requested that the actions taken by the respondent at its July 21, 2004, special meeting be declared null and void.

 

5.      With respect to the complainant’s allegation described in paragraph 4a, above, §1-225(a) 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 . . . .”

 

6.      Section 1-200(6), G.S., provides in relevant part that “ ‘[e]xecutive sessions’ 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. . . .”

 

7.      It is found that the respondent did not conduct a formal vote in executive session but rather deliberated and decided not to refer the personnel matter to the Board of Ethics.

 

8.      It is found that the act of reaching the decision not to refer the personnel matter to the Board of Ethics went beyond the permissible use of executive session, which is limited to discussion and deliberation.

 

9.      It is concluded that the respondent violated the provisions of §§ 1-225(a) and 1-200(6), G.S., by reaching the decision not to refer the personnel matter to the Board of Ethics in executive session.

 

10.  With respect to the complainant’s allegation described in paragraph 4b, above, §1-231(a), G.S., provides in relevant part that “[a]t an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion . . . .”

 

11.   It is found that the presence of all invited persons was required during most of the executive session.

 

12.   It is found, however, that during the five minutes that it took the respondent to draft the statement described in paragraph 3, above, the presence of the invited persons was not required.

 

13.   It is concluded that the respondent technically violated §1-231(a), G.S., by allowing the invited persons to remain in the executive session while the respondent drafted the statement described in paragraph 3, above. 

 

14.   The Commission declines to consider the complainant’s request for civil penalties. 

 

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 executive session provisions of §§ 1-200(6), 1-225(a) and 1-231(a), G.S.

 

2.      The respondent’s decision not to refer the personnel matter to the Board of

                  Ethics is hereby declared null and void.

 

3.      The respondent shall contact this Commission’s staff to schedule a training

      session on the Freedom of Information Act, which the members of the

      respondent shall attend.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 10, 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:

 

Clarence Jennings

71 Hall Road

Easton, CT 06612

 

Board of Selectmen,

Town of Easton

c/o John C. King, Esq.,

James N. Tallberg, Esq. and

Nicole Vitrano, Esq.

Updike, Kelly & Spellacy, PC

One State Street

PO Box 231277

Hartford, CT 06123-1277

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-376FD/paj/8/15/2005