FIC2005-009

6. It is found that the respondent took up in executive session the employment of the complainant specifically and the duties of the executive director generally, without having described that business on its agenda or adding it to the agenda. Two of the commissioners, Kuchma and Levine, initiated the discussion. They wished to relieve the complainant of his position because of his dual responsibilities as executive director of the respondent and state legislator representing the 129^th district.

7. It is found that the respondent did not give the complainant notice that his employment would be discussed in executive session or an opportunity to require that the session be conducted publicly.

8. It is found that when the complainant and the public were permitted back into the meeting, the respondent made no mention of its discussion in executive session.

9. It is found that the complainant subsequently learned that his employment had been discussed and criticized in the executive session through a report in the Connecticut Post newspaper and discussions with individual commissioners. However, no action was taken at the December 8, 2004 meeting to dismiss the complainant from his employment.

10. It is found that counsel for the respondent, who attended the executive session, subsequently provided the complainant with a summary of the executive session.

11. It is also found that the respondent at a subsequent meeting continued its discussion of the employment of the executive director publicly, and gave him an opportunity to discuss issues that had been raised in the executive session, although the commissioners who sought his dismissal declined to answer the complainant’s questions.

12. Section 1-225(a), G.S., 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.”

13. Section 1-225(f), G.S., provides:

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. [Emphasis added.]

14. 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 …. [Emphasis added.]

15. Section 1-225(c), G.S., provides:

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business or, if there is no such office or place of business, in the office of the Secretary of the State for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency. Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings. [Emphasis added.]

16. The respondent maintains that the executive session was permitted by §§1-225(a) and 1-200(6), G.S., because its discussion was limited to the position of the executive director generally, and not the complainant specifically.

17. However, the respondent misapprehends the plain meaning of §§1-225(a) and 1-200(6), G.S. To the extent that the respondent limited its discussion to the position of the executive director generally, and not the complainant specifically, it was not permitted to convene in executive session.

18. For example, 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.

19. 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.

20. More recently, in Docket #FIC 2003-385, Douglas Dalena and Waterbury Republican-American, against Board of Police Commissioners, Borough of Naugatuck, the Commission concluded that the board violated §§1-225(a) and 1-200(6), G.S., when it discussed procedures to be followed at a subsequent meeting concerning the discipline of a certain police officer, and the possibility of bias or recusal by members of the respondent, without discussing the specific officer who was to be disciplined.

21. 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., to discuss general personnel issues. Rather, an agency may only discuss an individual public officer or employee whose privacy might be affected by conducting that discussion in open session, and then, only if the individual is given notice of the session and an opportunity to require that it be conducted publicly.

22. Further, notwithstanding the respondent’s assertions to the contrary, it is found that the respondent did specifically discuss the complainant’s performance and employment in the executive session.

23. To the extent that the respondent did in fact discuss not just the complainant’s position generally, but the complainant’s performance and employment specifically, which it concededly did, it failed to notify the complainant that his performance and employment would be discussed and failed to give him the opportunity to require that discussion be held at an open meeting, pursuant to §1-200(6), G.S.

24. It is concluded that the respondent violated §§1-225(a) and 1-200(6), G.S., by convening in executive session for an improper purpose, and by convening in executive session to discuss the employment, performance, evaluation or dismissal of the complainant without permitting the complainant an opportunity to require the discussion to be held at an open meeting.

25. Additionally, it is concluded that the respondent violated §1-225(a), G.S., by failing to state the reason for its executive session.

26. Indeed, it is found, by inference from all the facts, that the respondent’s failure to put discussion of the complainant on the agenda or to state the reason for its executive session, was intended specifically to conceal the respondent’s purpose from the complainant.

27. Finally, it is concluded that the respondent violated §1-225, G.S., by taking up business that was neither on nor added to the agenda of its meeting.

28. 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. The commission may declare null and void any action taken at any meeting which a person was denied the right to attend …. In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial 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 the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

29. It is found that the respondent’s denial of the complainant’s right to be notified that his employment would be discussed in executive session, and of his right to require that discussion to be held in public, was without reasonable grounds. Indeed, the respondent’s deliberate concealment of its purpose from the complainant and from the public, its taking up of business not on its agenda, and its convening in executive session for a secret purpose, demonstrates either a woeful ignorance of or a willful disregard for the requirements of the FOI Act.

30. However, the Commission respects the complainant’s request that no civil penalty be assessed against the respondent, no matter how warranted, given the complainant’s continued employment by the respondent. Reluctantly, the Commission therefore declines to conduct an additional hearing for the purposes of determining whether to assess civil penalties against commissioners Kuchma and Levine, or additional members of the respondent.

31. Additionally, since no action was taken with respect to the complainant at the respondent’s December 8, 2004 meeting, the Commission in its discretion declines to impose a null and void order.

32. However, given the respondent’s disregard for the requirements of the FOI Act, it is found that it would be appropriate for the members of the respondent to attend a training session on the requirements of the FOI Act, in order to rectify, at least partially, the respondent’s denial of rights conferred by the Act.

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 §§1-1-225 and 1-200(6)(A), G.S.

2. The respondent shall forthwith schedule and host an educational workshop on the requirements of the FOI Act, to be conducted by staff of the Commission.

Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 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:

Robert Keeley, Jr.

2156 Park Avenue

Bridgeport, CT 06604

Board of Commissioners,

Downtown Special Services District,

City of Bridgeport

c/o Charles M. Needle, Esq.

Zeldes, Needle & Cooper

1000 Lafayette Boulevard

PO Box 1740

Bridgeport, CT 06601-1740

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2005-009FD/paj/9/19/2005

In the Matter of a Complaint by			FINAL DECISION
Robert Keeley, Jr.,
		Complainant
	against		Docket #FIC 2005-009
Board of Commissioners, Downtown Special Services District, City of Bridgeport,
		Respondent	September 14, 2005